Article by Cameron Harvey and Kristen Migliorini
Copying in the fashion industry is not uncommon. Some fashion designers believe that if they base their designs on another's original copyright work and make many changes to that work, this is sufficient to avoid copyright infringement under the Copyright Act. This is not always the case.
Original designers can find comfort in the recent Full Federal Court Appeal involving Elwood Clothing and Cotton On. In this case involving infringement of copyright in street wear t-shirts and clothing swing tickets designed by Elwood, the Full Court found that Elwood's designs were original artistic works within the meaning of the Copyright Act and Cotton On had copied a substantial part of the works.
The Full Court overturned the trial judge's original decision that Cotton On had not copied a substantial part of Elwood's t-shirts and swing tags.
Background
Elwood's claim related to two designs, designed by its employees. The 'NewDeal' design is a computer aided design applied to the front and back of the t-shirt. It is an arrangement of words and graphics. The second design is the 'Vintage Sport Swing Tag' which is applied to clothing swing tags or labels.
Cotton On produced for sale similar t-shirts to the 'NewDeal' design and similar clothing swing tags to the 'Vintage Sport Swing Tag'. In not unusual circumstances, the Cotton On employees who designed the infringing items admitted that they had used Elwood's designs as a reference point to create their own designs. The employees were directed to create their designs with the same "look and feel" as the Elwood designs "but different".
Appeal
Elwood successfully appealed the findings of the trial judge that Cotton On's t-shirt and swing tag designs were not a substantial reproduction of Elwood's 'NewDeal' and 'Vintage Sport Swing Tag' designs.
On appeal, one issue was whether the Elwood designs were original literary works or original artistic works. The Full Court rejected Cotton On's submissions that the designs were literary works because they contained literary text (for example, wording and numbers). The Full Court agreed with the trial judge that the designs were original artistic works.
The Full Court found that even though the actual Cotton On logo and numbers were different on the t-shirt and swing tag from the Elwood designs, Cotton On had still taken a substantial part of Elwood's copyright works. Cotton On had reproduced in its designs the layout and other important elements of expression (for example, the selection, arrangement and style of various elements) that had helped to create Elwood's desired '"look and feel" in its designs.
Copyright law does not protect "concepts", but the Full Court were of the view that the trial judge had erred by downgrading the layout and other elements of expression that created the "look and feel " of the Elwood street wear designs as falling into the category of "unprotectable 'ideas'" under the Copyright Act.
What does it mean?
Fashion designers should always be wary when using other works as a source of inspiration, as complex legal issues may arise. There is no arbitrary proportionate change that will prevent successful legal action.
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