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.
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
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".
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.
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.
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