Australia: Cotton On Caught Copying

Last Updated: 2 February 2009
Article by Anthony B. Watson

Key Points:

  • Elwood Clothing t-shirt and swing tag designs are held to be artistic works by the Full Federal Court and protectable pursuant to copyright law.
  • Designs admittedly copied by Cotton On have been found by the Full Federal Court to have substantially reproduced artistic works created by Elwood Clothing, even though many changes were made.
  • It is important for designers, whether they be in the fashion industry or other design industries, to take care when referencing another person's copyright work.
  • Changes to the colour, words or numbers in a design may not be enough for a copier to evade a finding of copyright infringement.

In late December 2008, the Full Federal Court delivered judgment in a copyright infringement appeal filed by Elwood Clothing Pty Ltd ("Elwood Clothing"). The unanimous decision of the Full Federal Court found that Elwood Clothing, a designer of fashionable street wear under the "Elwood" brand name, owned copyright in a range of its t-shirt and swing ticket designs.

The Full Federal Court overturned the trial judge's finding that a t-shirt and swing ticket design, which employees of Cotton On Clothing ("Cotton On") admitted to copying from designs released by Elwood Clothing, did not constitute an infringement of copyright.

This is an important decision that upholds copyright protection for designers and innovators of original clothing designs, and demonstrates that even though many changes were made to the Cotton On design this was insufficient to avoid infringement.

The Facts

Employees of Elwood Clothing designed an innovative t-shirt design known as "NewDeal" (click here). This t-shirt design was extremely successful for Elwood Clothing and the design was one of its best sellers at the time. Employees of Elwood Clothing also designed an innovative and unique label design known as "Vintage Sport Swing Tag" (click here) which was used on a range of its garments including "NewDeal". 

Cotton On released a similar t-shirt to the "NewDeal" design in 3 different styles (click here). Cotton On also released a swing tag similar to the "Vintage Sport Swing Tag" design (click here). The Cotton On designers gave evidence at trial that they had made reference to the "NewDeal" design and the "Vintage Sport Swing Tag" design when they designed the Cotton On t-shirts and swing tag. Furthermore, the evidence led at trial revealed that these employees were told to use the Elwood Clothing garment and swing tag in order to design something that was "the same, but different".

The Trial

At trial, Justice Gordon found that the "NewDeal" design and the "Vintage Sport Swing Tag" design were protectable under copyright law as artistic works. Her Honour rejected Cotton On's submissions that these works were literary works as they could be read. Justice Gordon noted that the designs were artistic in nature because they had been created to form an aesthetically pleasing "look and feel" in the same way that any picture or drawing does.

However, Justice Gordon rejected Elwood Clothing's submissions that the Cotton On garment and label designs substantially reproduced the "NewDeal" design and the "Vintage Sport Swing Tag" design.

In her analysis, Justice Gordon found that the "NewDeal" and "Vintage Sport Swing Tag" designs were made up of a series of integers. Her Honour noted that while the layout of the "NewDeal" and "Vintage Sport Swing Tag" may have been taken by Cotton On, the fact that Cotton On changed the words and the numbers resulted in a different visual impression being made. Her Honour went on to discount the ideas or concepts which she said copyright does not protect and she did not consider the copyright work as a whole.

The Court then considered whether Cotton On had taken a substantial part of Elwood Clothing's designs. Her Honour found that the integer taken by Cotton On was one of a series of integers and that this did not constitute a substantial part of the copyright work. Justice Gordon made this finding even though the evidence at trial showed that the Cotton On employees had blatantly copied the Elwood Clothing t-shirt and swing tag designs.

The Appeal

Elwood Clothing appealed the findings of the primary judge to the Full Federal Court of Australia who unanimously upheld the appeal. The Full Federal Court agreed that the designs were original artistic works and they also rejected Cotton On's submissions that they were literary works.

The Full Federal Court found that the Cotton On garment and swing tag designs did in fact infringe the copyright in the "NewDeal" design and the "Vintage Sport Swing Tag" design. In coming to this conclusion, the Full Federal Court noted that the trial judge was mistaken in excluding from consideration what she classified as the ideas or concepts which are not protected by copyright law in determining whether Cotton On had taken a substantial part of the work. While the Full Federal Court accepted that Cotton On had changed the words and the numbers, the real question was whether Cotton On reproduced a substantial part of Elwood Clothing's original designs – a question which they unanimously answered in the affirmative.

The case will now be sent back to the trial judge for a determination on damages. The parties were heard on this issue at the trial, however no determination was made by the trial judge as Elwood Clothing did not succeed in its infringement claims at the first instance.

The Lesson

It is important for designers, whether they be in the fashion industry or other design industries, to take care when referencing another person's copyright work. The test for an infringement of copyright is not whether there has been an exact reproduction of the work, rather a person will be found to have infringed copyright if they have created a substantial reproduction of the copyright work in question.

Changes to the colour, words or numbers in a design may not be enough for a copier to evade a finding of copyright infringement. If there is clear evidence of access to the original work and reference then significant changes need to be made in the new design in order for a designer to escape being found liable for copyright infringement.

2009 L'Oreal Melbourne Fashion Festival

Middletons is a proud sponsor of the 2009 L'Oreal Melbourne Fashion Festival which will take place from 15-22 March 2009. As part of our sponsorship, we will host the Middletons Fashion Law Breakfast at our Melbourne offices on 17 March 2009. This year's breakfast will cover a number of recent cases that have been handed down by Australian courts which impact the Australian fashion industry and will include a discussion of the Elwood v Cotton On decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.