Look at the Halloween section of almost any fashion retailer and you’ll likely spot a pattern emerging: costumes that are almost instantly recognisable, sold under names that are not. Dolls Kill’s take on the “Sexy Patrick” meme, for instance, is listed as the “Sexy Pink Starfish” costume.

This practice is something of an open secret. Shoppers know exactly which character they’re buying, and retailers know exactly which character they’re selling. So why can the costume simply not be called Patrick? And if it resembles the original so closely, on what basis can it be sold at all?

The name is largely a trade mark question. The look is more interesting, because the UK’s intellectual property framework offers a variety of methods through which fashion designs may be protected from replication and copying. These include registered and unregistered design rights, patents and copyright, and they often overlap. Here, we’ll look at copyright.

Copyright arises without registration, but protection is not automatic. To benefit from it, a work must be “original”, and it must fall into one of eight categories set out in the Copyright, Designs, and Patents Act 1988. One key category is “artistic works”, which traditionally covers buildings, photographs, engravings and works of artistic craftsmanship. A garment cannot reasonably be considered a painting, a photograph, or a building, so its best hope is the one category remaining: “works of artistic craftsmanship”. The only mandatory elements for a work to be one of artistic craftsmanship are that of “artistic quality” and “craftsmanship”, and fashion has struggled with each.

“ Copyright arises without registration, but protection is not automatic.”

What counts as “artistic” has been extensively considered on many occasions, and judges have historically tended to be reluctant to accept that works of fashion could be artistic.

Craftsmanship is no easier. It has been traditionally implied that “craftmanship” is more likely to be demonstrated where works are unique and one-of-a-kind. In effect, this has created a higher threshold for copyright to subsist in fashion articles as they are rarely produced on a one-of-a-kind basis.

The landmark decisions of the Court of Justice of the European Union in Cofemel appeared to change the picture, as it indicated that the only requirement for copyright is originality. That seems to lower the bar for fashion, and it calls the UK’s assessment of “artistic works” into question. Because Cofemel was decided before the UK left the EU’s legal order, it is treated as binding retained EU law, which means the UK courts’ traditional approach of imposing additional criteria of artistic appeals looks difficult to square with it.

The next UK case, Response Clothing, recognised the Cofemel principles but did not fully clarify the position. The Retained EU Law (Revocation and Reform) Act 2023 has since added further uncertainty. It abolished the supremacy of EU law and allows the higher courts, the Court of Appeal and the Supreme Court, to depart from retained EU case law. THJ v Sheridan confirmed that the correct test of originality is whether a work is the “author’s own intellectual creation”, but how originality will be assessed in future cases remains unclear.

Uncertainty is detrimental to fashion because it means that copyright cannot easily be enforced, and designers may not know where they stand.

Some sceptics see fashion as frivolous, but we all adorn our bodies with something, and everyone is influenced by fashion to some extent. It also carries real economic weight, with the fashion industry directly contributing £62 billion to the UK economy in 2021. It sits at an unusual intersection between art and utility, and between innovation and imitation.

Fashion is constantly evolving and subject to trends, and because the industry is largely built on seasonal product lifespans, it is debatable how far designers want to invoke these rights at all. Yet in a digital era, where social media, AI capabilities and online shopping make it easy for “design pirates” using the fast fashion business model to replicate newly released products quickly, designers need to be able to defend their work from being looted.

So where does that leave the “Sexy Pink Starfish”? Its name keeps clear of the franchise’s trade marks, and its look sits in a corner of the law where copyright, as it stands, offers fashion little certainty. If a look can be copied this closely and still be sold openly, who is UK copyright really there to protect: the designer who created it, or the retailer who copies it?

This article provides general information and does not constitute legal advice.