This is a good moment for everyone in the fashion business to stop, breathe and consider the implications of the biggest shift in the interpretation of American intellectual property law to have affected the trade in decades. Fashion law in the United States has changed significantly in a way unique to the common law legal system: Although not a single word has been altered in any statute, what we know now about the protectability of fashion designs is very different from what we thought we knew a very short time before.

Quite before my time, my firm won the case that is said to have started it all when the U.S. Court of Appeals for the Second Circuit, acknowledging it was addressing claims “on a razor’s edge of copyright law” as understood at the time, held that the non-utilitarian elements of belt buckle designs were protectable under the Copyright Act. Kieselstein-Cord v. Accessories by Pearl, 632 F.2d 989, 990 (2d Cir. 1980).