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.”

Read the full Real Clear Markets article here.

Tirzah Duren is the Vice President of Policy and Research at the American Consumer Institute, a nonprofit educational and research organization. You can follow her on Twitter @ConsumerPal.