The U.S. has a long history of intellectual property (IP) protections that are enshrined in the Constitution. Modern technology, such as generative AI, has created a push by some to strengthen such protections. However, recent online drama around fitness gear and the design of a skort – a mixture of skirt and shorts – shows that creative products are already well protected under the current system, and that taking a maximalist approach to IP is not the way to maximize consumer welfare.
Casey Ho, also known online as Blogilates, got her start by posting Pilates videos online. Recently, Ho has branched out even further by launching POPFLEX, with the tagline “work out, but make it cute.” One such skort design was copied by competitors. This spurred Ho to patent the “ornamental design” for the skort, which she announced in a melodramatic video complete with her stabbing a cake with the thieving company’s name.
Ho’s patent on her design shows that protections already exist for creative products. This should alleviate concerns by artists over the rise of generative AI. Generative AI programs can develop new content, such as text, images, or music, using training datasets that teach pattern matching. The use of large swathes of data is what has caused some to push for compensation for those whose work was used in the training.
Luckily for lawmakers, and as shown by the design of skorts, creative copyrights and patented works did not start with AI. The American Consumer Institute has discussed at length the extensive legal framework and tests the U.S. uses to determine if outputs infringe upon another’s copyright.
Patents such as ornamental design focus on the look of a product rather than on the function or technology. The legal tool commonly used is the ordinary observer test which states that:
“[I]f, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.”
Ideally, incorporating AI into this current framework would not only protect artists from direct copies but also allow for new technologies to grow and continue providing consumer benefits. However, if the push for increased IP protections for AI succeed, these could actively prevent consumer benefits that arise due to inspiration from creative work.
An example of such inspiration is the Dupe subculture, which has been popularized on social media as influencers gain traction by showing designer brand imitation products without the high price tag.
As Aesop Chief Customer Officer Suzanne Santos recently noted while describing the line between duping and copying, “It is very difficult to create original concepts, they are rare...” The derivative nature of design is a feature, not a fluke, and benefits consumers and designers alike.
Inspiration is everywhere, even on Ho’s POPFLEX website. Lululemon is currently a major patent holder in the fitness realm which includes patents for crossover yoga pant waistbands. POPFLEX offers many versions of similar, although differentiated, waistbands and POPFLEX is not alone. The popularity of this feature has inspired other brands as well.
While Lululemon is credited as the popularizer, and possible inventor of yoga pants, and has patented many of their designs, these protections aren’t so extensive that they prevent other companies, like POPFLEX, from using their products as inspiration for their own creative takes.
These inspired products benefit consumers through increased options and variance in price points. While creatives may dislike serving as inspiration for other designers or being used to train generative AI programs, the reality remains that inspiration has been and always will be a crucial component of the creative economy. Lawmakers should pause to consider the consumer benefits that emerge due to such inspiration before passing extensive rules aimed at limiting emerging technologies.
