Despite the robust nature of the fashion industry, which has been largely unprotected by copyright, there is a clamor among certain sectors for stronger protection for fashion designs and the apparel manufactured from these designs. This article acknowledges that full-dress copyright protection is unnecessary, impracticable, and harmful; however, it proposes a middle-ground: a sui generis system of protection that only protects fashion designs and pieces of apparel that are exceptionally original, and does so only against other articles that are substantially identical.

This article provides a standard (“exceptionally original”) that will protect a fashion design only if it meets certain elements. It is argued that the “exceptionally original” standard, being so restrictive, will only protect a limited and select group of designs, and the proposed standard of infringement, being so high, would only prohibit slavish copies. This level of protection and high legal standard for infringement would encourage designers to be more innovative; it will make it easier for triers of fact to identify which designs are truly innovative (and thus deserving of being covered by the proposed sui generis system of protection); and most importantly, this high standard for protection and corresponding high standard for infringement will not chill creativity, since this sui generis system would only bring outside of the public domain a small, select, and exceptional class of designs.