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Print & Pattern Protection
In the fashion world, prints and patterns are often what make a garment stand out. From bold graphics on t-shirts to floral swimsuits and flowing fabrics, these creative elements are what customers remember. But with creativity comes the risk of imitation, and under Australian law, copying someone else’s print or pattern can land a business in hot water.
This article looks at how copyright applies to textile designs and what the Australian courts have said in key cases.
Copyright and Fashion: The Legal Framework
Copyright in Australia does not generally protect the overall cut or appearance of garments. Once a garment is mass-produced, protection usually falls under design law rather than copyright.
However, prints, textile patterns and graphic artworks applied to clothing are treated differently. Under section 31(b) of the Copyright Act 1968 (Cth), these are protected as artistic works. The copyright owner enjoys the exclusive right to reproduce, publish and communicate the work to the public.
Copyright protection arises automatically upon creation in material form—no registration or fee is required. While the © symbol is optional, it can be a useful reminder to others that your work is protected. Copyright generally lasts for the life of the creator plus 70 years.
What Counts as Copying?
Copyright infringement occurs when a person reproduces the whole or a substantial part of a work. Importantly:
- Even copying a small portion may infringe if it is the distinctive part of the work.
- The popular belief that changing 10% of a design avoids infringement is a myth. What matters is the quality and significance of what is taken, not the percentage.
- Ideas themselves are not protected, only the expression of those ideas. For example, the idea of creating a butterfly print is not protected, but your specific butterfly design is.
- Internationally, thanks to treaties such as the Berne Convention and TRIPS Agreement, Australian works are protected in over 160 countries—and overseas works are protected here.
Key Australian Cases
Elwood v Cotton On
Elwood claimed Cotton On had copied its two of its well-known sport and vintage style t-shirt designs. While the two brands used different numbers and fonts, the overall layout, text arching, placement of graphics and style were highly similar.
The Full Federal Court agreed with Elwood: Cotton On had reproduced too much of the look and feel of Elwood’s designs. The lesson: copying the arrangement and style of a design can be enough to amount to infringement, even if the details differ.
Seafolly v City Beach
In 2014, Seafolly successfully sued City Beach for copying its floral textile prints. Evidence showed City Beach designers were given Seafolly images as “references” and even referred internally to a “Seafolly knock-off.”
The Federal Court found copyright infringement, awarding Seafolly more than $250,000 in damages and ordering the infringing stock off the market. The judge described City Beach’s actions as “tantamount to an instruction to copy.”
This case underlines that intent matters—internal emails and design briefs can make or break a defence.
Ladakh v Quick Fashion
Not all cases succeed. Ladakh designed a butterfly print and later found Quick Fashion selling dresses with a strikingly similar design.
While the prints were alike, the court could not find clear evidence of copying (the “smoking gun”). Quick Fashion claimed it had simply chosen a fabric from an overseas supplier. Without proof of deliberate copying, Ladakh’s claim failed.
The takeaway: similarity alone is not always enough—evidence of copying is crucial.
Practical Tips for Businesses
Protect originality. Ensure your prints and designs are created from scratch.
Keep records. Document the design process—sketches, drafts and file dates can prove originality.
Check sources. If you source fabric externally, know where it came from. If the supplier copied, you may still be liable.
Be careful with instructions. Emails telling designers to “copy” or “make it look like” another brand’s design may later be used in court.
Seek legal advice. The overlap between copyright and design law is complex and depends on the facts of each case.
Conclusion
Copyright protection is a powerful tool for fashion businesses, but its boundaries are not always straightforward. These cases show that while courts are willing to step in to protect original prints and patterns, success depends on proving both originality and copying.
At Sharon Givoni Consulting, we regularly advise clients in the fashion and creative industries on protecting their intellectual property, enforcing their rights, and avoiding costly disputes.
Frequently Asked Questions
1. Can clothing designs be protected by copyright in Australia?
Generally, the overall cut or silhouette of a garment is not protected by copyright once it is mass-produced. Instead, protection usually falls under the Designs Act 2003 (Cth). However, the prints, graphics, and textile patterns applied to clothing can be protected under copyright as “artistic works”. In rare cases, a one-off garment may be considered a “work of artistic craftsmanship” and attract copyright protection, but this is the exception rather than the rule.
2. Do I need to register my textile design to get copyright protection?
No. Copyright protection arises automatically in Australia once the design is created in material form (for example, once the sketch, digital file or textile sample exists). There is no registration system for copyright in Australia, unlike trade marks or patents. That said, it is wise to:
- Mark your work with the © symbol, your name and the year of creation, to put others on notice.
- Keep dated records of your design process—drafts, sketches, and emails can serve as powerful evidence of originality if a dispute arises.
3. What counts as “copying” under copyright law?
Copying does not require a complete duplication. Infringement occurs when a “substantial part” of the original design is reproduced without permission.
Australian Courts look at both quality and quantity.
For example, copying a distinctive floral motif or repeating the layout of a t-shirt graphic may be enough, even if other elements differ.
The common belief that “changing 10%” avoids infringement is a myth—the law cares about the distinctiveness of what was taken, not a percentage.
4. What if I buy fabric overseas—could I still be liable for copyright infringement in Australia?
Yes. Under international agreements such as the Berne Convention and TRIPS Agreement, copyright protection extends across borders. This means:
- If you import fabric copied from an overseas designer, you can still be sued in Australia for infringement.
- Conversely, your Australian designs are protected in over 160 countries, without any additional steps.
- For businesses sourcing fabrics offshore, it is crucial to verify that suppliers are not providing unauthorised copies of others’ designs, as liability can ultimately fall on the importer.
5. How can fashion businesses protect themselves from disputes?
There are several proactive steps businesses can take:
- Register trade marks for brand names, logos and distinctive brand elements.
- Keep design records (sketches, drafts, CAD files) to prove originality.
- Use written agreements with designers, ensuring copyright is properly assigned to the business if designs are commissioned.
- Conduct due diligence when sourcing fabrics or prints to avoid unknowingly using infringing designs.
- Act quickly if you suspect infringement—delay can weaken your legal position.
If you would like tailored advice about protecting your prints, patterns or designs, contact us here.
Print & Pattern Protection
In the fashion industry and while the basic rule to remember is simply “do not copy”, what will amount to copying in any given situation can vary on the case.” This article explores the topic in light of some recent cases on point looking at Seafolly and Cotton On case studies by way of example.
Read more…
Kindly reposted with the permission of ATF Magazine.
Please note the above article is general in nature and does not constitute legal advice.
Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.