A Photograph and a Dress Are the Same Kind of Property

Courts made photographs property in 1884 and never did the same for clothing. A century of designers built authorship tools the law refused to provide. Photographers need them now.

I photograph fashion. I also teach the history of photography at a university. Those two practices collided recently while I was reading about fast fashion, because the argument everyone is having about copied dresses is an argument photography already had, in front of the Supreme Court, in 1884. We won ours. Designers never got theirs. And the difference between those outcomes has nothing to do with the objects and everything to do with a series of legal decisions that could have gone the other way.

A photograph and a dress are both records of decisions

Strip away the law for a moment and describe the work itself. A photograph is a record of accumulated decisions: where the subject stands, what falls in and out of the frame, where the light comes from, what the lens does to space, when the shutter opens. A garment is the same thing in a different material: the cut, the drape, where a seam sits, how a proportion resolves against a body. Neither object is the point. The object is the residue. The authorship lives in the decisions, and anyone who has spent time on the working side of either craft knows the decisions are the hard part.

That is not a metaphor I invented to make this piece work. It is, almost word for word, the legal reasoning that made photography property. When the case arrived at the Supreme Court, the question was whether a photograph could have an author at all, and the answer the Court gave located authorship exactly where a working photographer would: in the choices, not the machine.

One distinction before the history, because the public argument constantly loses this thread. There are two kinds of property in play. Property in the artifact was never in dispute: buy the print or buy the dress and the object is yours. Copyright is property in something else, the pattern, the intangible arrangement of decisions the artifact records. When a fast-fashion company copies a garment, nothing leaves the designer's studio and no object goes missing, which is exactly why calling it theft confuses people whose intuitions run on objects. What gets taken is the pattern. The question in everything that follows is whether the law treats the pattern as property, and for whom.

Photography became property in 1884. The cut of a dress never did

In 1884, the Burrow-Giles Lithographic Company was in front of the Supreme Court arguing that a camera is a machine and machines do not create. The photograph at issue was Napoleon Sarony's portrait of Oscar Wilde, and Burrow-Giles had sold 85,000 unauthorized lithographs of it. The Court ruled for Sarony, and the reasoning matters more than the result. It did not declare photography an art in the abstract. It found that this photograph showed authorship because Sarony had posed Wilde, selected the costume and draperies, arranged the light and shade, and evoked the expression. The art was in the decisions. France had reached the same conclusion 22 years earlier, in an 1862 case my Modern Art course covers, which recognized photography as an art form entitled to copyright protection. By the 1880s, on both sides of the Atlantic, the record of a photographer's decisions was property.

The record of a garment designer's decisions never made that crossing, at least not in the United States. American copyright law treats clothing as a "useful article," and useful articles are not protectable. What survived into the present is a strange half-protection the Supreme Court confirmed as recently as 2017 in Star Athletica v. Varsity Brands: a print or graphic applied to the surface of a garment can be copyrighted, because it can be imagined as art separate from the garment. The garment itself, its shape, style, cut, and dimensions, cannot. The fabric is protectable. The dress is not. Congress has been asked repeatedly to close the gap, and repeated legislative efforts have been rejected.

Hold those two outcomes next to each other and the usual explanation collapses. There is no property of a photograph that makes it authorship and no property of a dress that makes it industry. There are only courts that decided one case in 1884 and declined, for the next 142 years, to decide the other one the same way. The useful article doctrine is not a law of nature. It is a choice, renewed every time it goes unexamined.

In 1941 the Supreme Court outlawed fashion's only defense

Here is the part of the story that answers the question every article about fast fashion eventually provokes: why don't designers just organize and fight back? They did. It worked. The law dismantled it.

In the 1930s, American dress designers built the most effective anti-piracy system their industry has ever had. The Fashion Originators' Guild of America registered members' original designs, sent shoppers into retail stores to spot knockoffs, ran tribunals that judged whether a garment was a copy, audited its own members and fined them for violations, and organized boycotts of any retailer who sold pirated designs. Roughly 12,000 retailers signed cooperation agreements. The Guild called the practice it was fighting "style piracy," and its members were candid about their legal position: their designs were neither copyrighted nor patented, because no such protection existed for them. They asked only for the right to refuse to do business with people who profited from copying their work.

In 1941 the Supreme Court struck the Guild down as an antitrust violation. Read the opinion and the trap closes in plain view. The designers stated that copying was unethical, admitted the law gave them nothing, and built a private remedy in the space where a public one should have been. The Court ruled the private remedy illegal. The law declined to protect them, then prohibited them from protecting themselves. Every argument you have ever heard about how garment copying is simply how the industry works descends from that double refusal.

Vionnet's thumbprint, Ho's patent: authorship without the law

What designers did instead is, to my eye, the most instructive part of this whole history, because none of it required the law's permission.

Charles Frederick Worth, the man the Met credits as the first couturier, began sewing a signed label into his garments in the 1860s, gold-stamped at first and later a woven signature. He was not the first dressmaker to use a label, but he made it into something new: a claim of authorship, a painter's signature on a dress, decades before there was any legal framework to back the claim.

Madeleine Vionnet went further. In the early 1920s she put her signature and the print of her right thumb on the label of every garment that left her Paris house, and she photographed each design from the front, back, and sides, building a registry of proof. She co-founded an association to pursue copyists in court. And here is the honest part: it did not stop the copying. The Museum at FIT's Faking It exhibition displayed an unauthorized copy of her Little Horses dress from 1924, made while the thumbprint system was in full operation. The thumbprint was never really a lock. It was a permanent, physical record of who the author was, made by a designer who understood that proof of origin has value even when the law refuses to act on it.

A century later the toolkit is recognizably the same, updated for new materials. When Shein copied Cassey Ho's Pirouette Skort, twice, she converted the garment into a design patent, one of the few forms of protection that can reach a garment's actual shape, and has since used it to take down 393 knockoffs of that one design. When Zara reproduced Tuesday Bassen's enamel pin designs in 2016 and its lawyers dismissed her claim, she published the side-by-side comparisons, and Zara suspended the items; she then co-founded a site where artists sell the originals that were copied. When three independent designers sued Shein in 2023 over exact copies of their work, a federal judge allowed their racketeering claims to proceed, a legal theory built for organized crime. And when Fashion Nova sold a piece strikingly similar to Anifa Mvuemba's Jax Knit Gown in 2022, her single post of the two images side by side, without even naming the retailer, was enough that the dress came down.

Notice what the modern wins have in common. Bassen's pins and the Shein plaintiffs' posters and patches are graphic art, the one category copyright actually reaches. Ho's victory required converting her garment into a different legal object entirely. Mvuemba's remedy was reputational, not legal. Nobody in a hundred years has won on the cut of a garment, because the cut of a garment is still where photography stood in 1883: classified as something less than authorship. The designers keep winning at the margins the law concedes, and building authorship claims, in thumbprints, patents, and public record, everywhere it does not.

Photographers are entering the fight designers never left

I said at the top that photography won its case, and in law that remains true. In practice, I watch the ruling erode a little every semester. Sarony's principle, that posting or publishing an image is not permission to take it, is now contradicted daily by scraping operations, by training datasets assembled without consent, and by a general online attitude that anything visible is available. I spend real class time every year explaining to students that an image on Instagram has an author and an owner, because the ambient culture has taught them otherwise. The protection photographers hold is increasingly like the protection designers hold: real on paper, expensive to enforce, and ignored at industrial scale by parties who know most authors cannot afford the fight. Bassen paid $2,000 in legal fees just to send her claim to Zara. That number, not the statute, is the operative law for most working artists.

Which is why the history above is not a consolation prize for designers. It is a playbook, and photographers are the ones who now need to study it. Worth's label is a watermark and a credit line, insisted on every time. Vionnet's registry is your archive: dated, sequenced, provable. Ho's patent is the reminder that sometimes the answer is converting your work into whatever legal object the system will actually defend, including copyright registration, which most photographers still skip. Mvuemba and Bassen are the demonstration that a public, documented authorship claim can move faster than a courtroom. Designers spent a century defending authorship without reliable law behind them. Photographers are entering that condition now, whether we admit it or not, and the people we sometimes photograph for turn out to be the ones with the older, better playbook.

A photograph and a dress are the same kind of property because they are the same kind of work: a record of decisions somebody made, that somebody else would rather take than make. The law's job is to recognize that. Where it refuses, the last century of garment designers already showed everyone else what to do.

A Photograph and a Dress Are the Same Kind of Property

A photograph and a dress are both records of decisions

Photography became property in 1884. The cut of a dress never did

In 1941 the Supreme Court outlawed fashion's only defense

Vionnet's thumbprint, Ho's patent: authorship without the law

Photographers are entering the fight designers never left

Where This Comes From

Further Reading

Commercial Photography