Few would deny that fashion moves in trends, and different designs often re-interpret an earlier trend or style. The line between “inspiration” and “copying” can get very blurry. While it is clear that a number of designers will have some elements of a design which follow a trend (the use of leather, cowl neck lines etc), it is still imperative that the design itself is original if it is to attract registered design protection, or, for its two-dimensional elements, copyright protection.
Fabric prints and graphic designs are protected by copyright in Australia, for which there is no system of registration. While being “inspired” by an earlier work is permissible, reproducing a substantial part of the earlier work is not. So what is a reproduction of an earlier work that will fall foul of the copyright infringement provisions? The focus is on the quality of what has been taken, rather than the quantity. All too often I hear the phrase “but I changed it by 10 per cent or 20 per cent”. Unfortunately for those who believe that this is sufficient to avoid any claim of copyright infringement, there is simply no such thing as a 10 per cent or 20 per cent rule at law.
Two recent decisions of the Federal Court have confirmed that the emphasis will always be on the quality of the part of the work which has been reproduced, not the quantity. While these cases are not in relation to fashion items, they are very relevant in demonstrating how the courts will assess whether a work has been reproduced.
A copyright infringement occurs when the whole of, or a substantial part of, a copyright work is reproduced. The term “substantial” is not defined in the legislation, however in the recent decisions of EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited and Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd, the court confirmed that the determination of what is “substantial” is not a quantitative assessment. In addition, while the part of the work which is reproduced must be a substantial part of the original copyright work, it need not form a substantial part of the “infringing” work.
The EMI case
Most people would be familiar with the “Kookaburra sits in the old gum tree” children’s folk song. The owners of copyright in that song sued Men at Work for copyright infringement based on the flute riff in the recording of the song “Down Under”. Both at trial and on appeal, the court held that the flute riff infringed the copyright in the “Kookaburra” song. This was despite the fact that the song “Down Under” had 93 bars, of which only five had been taken from the “Kookaburra” song. The court considered that the relevant sections of Kookaburra which were reproduced constituted the essential air or melody of Kookaburra, ie a substantial part of the copyright work.
The Barrett case
Following its wins in recent years against Metricon Homes and Carlisle Homes, Barrett Property Group (Barrett) has now had a third copyright victory against Dennis Family Homes (Dennis) which was found to have copied aspects of Barrett’s Seattle and Memphis house designs (Barrett Works). The allegation of copyright infringement related only to a specific section at the rear of the Barrett houses, being a group of rooms and spaces around a covered outdoor alfresco dining area (alfresco quadrant). It was not alleged that the Barrett alfresco quadrant was exactly reproduced in any of the Dennis house plans. Indeed it was acknowledged that the corresponding Dennis alfresco quadrant included a number of different features and details. However, the court found that the Barrett alfresco quadrant was a substantial part of the Barrett Works, and that there was sufficient similarity between the Barrett Works and the alfresco quadrant in the Dennis houses and plans to establish that infringement had occurred. The court held that while there were differences between the Barrett Works and the Dennis house plans overall, (in the front part of the house design and areas outside the alfresco quadrant, and also in the alfresco quadrants themselves in terms of dimension, proportion, feature and detail), there were great fundamental similarities which acted to create the same impression and ambience.
Issue to consider
The focus on the quality of the part of the work taken can be equally applied in the fashion industry. If an earlier work, such as a fabric print, is referenced to create a new graphic design, the fact that the new work may be 20 per cent different from the earlier work may be immaterial. What will be relevant will be how important, in a qualitative sense, the part taken was to the original work as a whole.
Businesses must ensure that their employees and contractors are aware that reproducing even a small part of another work may constitute copyright infringement, even if there are other substantial differences between the two works. If the part of the work which is taken is the most valuable part (based on its originality or even its commercial value), then the courts will be more likely to treat that part as important in a qualitative sense, leading to a finding of copyright infringement notwithstanding it may be only a small portion of the original work in a quantitative sense.
The long-held belief by those in the industry that changing a work by a certain percentage, or reproducing only a small proportion of a work, would be sufficient to avoid infringement, should now be well and truly put to rest.
Lisa Egan is a senior associate at Middletons law firm.