Image courtesy of Kath Jones under the Pexels License. Available at: https://www.pexels.com/photo/text-5356427/.
They say that imitation is the sincerest form of flattery. Designers often seek inspiration from many sources, including from the work of other designers.
But if another designer’s work is used as a source of inspiration, at what point does that inspiration end and copyright infringement begin?
What does copyright protect?
Let’s start with the basics of copyright. Generally, the rule of thumb is that copyright law protects the expression or physical form, but not an idea itself.
As a result, a designer or author cannot rely on copyright law if someone were to steal his or her idea or style, but may be able to rely on copyright law if someone were to substantially reproduce or copy his or her particular work.
For example, you cannot own the idea of a Koala as a print for curtains, because that would prevent others from designing curtains featuring Koalas, and this would create an unfair restriction on other designers. You can, however, own an expression of that idea, such as the way the koala appears in the picture below.
Caption: Image courtesy of Melbourne based artist and designer Susie Monte, founder of Drunk on Water (www.drunkonwater.com)
TIP: Although copyright law does not protect ideas, concepts, information, styles or methods,
other areas of law, such as the law of confidential information, contracts, misleading or deceptive conduct or passing off may sometimes be available to assist in protecting these aspects. If you are unsure, it’s always worth asking.
What is ‘Copying’?
However, although copyright law does not protect ideas, just changing or tweaking someone else’s design may not be enough to avoid a copyright infringement. According to the Copyright Act, copyright infringement will have occurred if a ‘substantial part’ of an original work has been taken without the copyright owner’s permission.
Although this definition sounds simple enough, there is no clear-cut formula for determining whether what has been copied is ‘substantial’. In fact, determining whether copyright infringement has taken place has to do with the quality of what has been copied, rather than the quantity. Each case is a matter of fact and degree and determinations are made on a case-by-case basis.
Caption: Image courtesy of Melbourne based artist and designer Susie Monte, founder of Drunk on Water (www.drunkonwater.com)
Case Study - Seafolly v Fewstone: Victory over copycat
In April 2014, popular swimwear label Seafolly won a case in the Federal Court of Australia against an online retailer, City Beach, for infringing the copyright in Seafolly’s fabric designs. City Beach had aimed to create swimwear garments with the same look and overall feel as Seafolly’s collection but aimed to avoid copyright infringement by changing the design “just enough”.
Photographs of the Seafolly prints had been sent as ‘references’ to City Beach’s designers.
City Beach came back with two arguments.
Firstly, they said that City Beach had merely taken ideas from the Seafolly’s designs and not the expression of those ideas.
The second argument was that City Beach had not substantially reproduced Seafolly’s work.
However, these arguments were rejected.
The judge was unimpressed with City Beach’s actions, describing them as ‘tantamount to an instruction to copy’.
The judgment resulted in City Beach having to pay $250,000 to Seafolly, as well as handing over all unsold stock that carried the infringing design.
This case demonstrates that companies cannot escape liability of copyright infringement if their design recreates the same “look and feel” of the original.
Several of the designs in the case are compared below:
Caption: Left: Seafolly’s “English Rose print”
Right: City Beach’s “Rosette Print
Caption: Left: Seafolly’s prints
Right: City Beach’s prints
As you can see, the designs are by no means identical.
Even so, the copies were still held to infringe the copyright in the original Seafolly designs.
The thing to remember is that if you base a design on a pre-existing work, you are in dangerous territory.
TIP –If you set out to make something ‘the same but different’, you are risking copyright infringement. The courts ask: have you taken a “substantial part” of the original work?
Case Study 2 - Cummins v Vella: No ownership in style and technique
That being said, the court will not go so far as to say that a person can own a style or technique as was shown in the case of Cummins v Vella.
Dean Vella is a Queensland artist whose work is characterised by his use of bright primary colours and an impasto technique, a method of applying paint to a surface very thickly.
Mr Cummins freely admitted that his paintings were influenced by Mr Vella's works and Cummins’ paintings used the same painting style, choice of colours, subject matter and paint application technique as Vella. As a result, there were strong similarities between the two artists’ works.
However, the result here was that the court differentiated between “form and expression” on one hand and “style and technique” on the other. For infringement to be found, there must be a substantial reproduction of the original work, not the style. As Mr Cummins had only copied the style, there was no copyright infringement.
TIP – A designer’s style and technique are not protected by copyright.
Designs made by staff, employees and contractors
It is likely that you commission textile designers to design your products. Whether you have full-time staff or employ contractors on an “as-needed” basis, you need to take an active role to ensuring that the designs you are given are original.
You can do this by requiring your staff to submit early sketches and other evidence of the creative process and retain that documentation.
This can help put your mind at ease that they haven’t just copied the work of another, and the information can also be used as proof of independent creation should anyone accuse your business of copying down the track.
TIP – When designs are created for you by your staff or contractors, it is important to ensure that you have the ability to use the designs. Contractors and staff also need to understand what they can or cannot copy.
How to ensure designs are original
Setting a great example in this regard is Kellie Collis, founder of lifestyle label Mrs Darcy.
Collis sources her inspiration from gardens and is known to always have her camera in hand to photograph flower arrangements when something catches her eye.
She then works with her graphic designers to create bright colourful designs from her photographs that are then applied to accessories, bedding and other homewares.
Caption: Above: Kellie Collis designs her products based on photos she takes herself (www.mrsdarcy.com.au Photo (c) Kellie Collis)
TIP - Get your designers to keep records of their creative process, such as early sketches and preliminary designs. It’s your responsibility to ensure that they do this.
What does this all mean?
Whatever the complexity of the design, copyright protection can protect you from others copying your work, but it can also be a trap for the unaware.
Make sure you take the time to familiarise yourself with the dos and don’ts in relation to creating or using designs and always ask if you are unsure.
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