Preventing Copycats: Weaving Through the Legals

Preventing Copycats: Weaving Through the Legals

This is an updated version of an old post, click here to see the original.

Protecting creative products under Australian law

Imagine you come up with a striking new pattern for curtain fabric or a distinctive weave for upholstery. Retailers want it. Customers recognise it. Then you see a near-identical version appear — cheaper, faster, and without your permission.

At that point, the question is no longer creative. It is legal.

Have you protected your intellectual property (IP)?

In other words, can you stop a competitor from copying your textile design? And if so, under which law — copyright, designs, or something else entirely?

As with many IP questions in Australia, the answer is “it depends”. In particular, it often turns on whether the textile product can be characterised as a “work of artistic craftsmanship” under copyright law, or whether it is more properly treated as an industrial design, in which case design registration may be essential.

This article unpacks how Australian law approaches textile designs and creative products, the traps for the unwary, and how designers can make smarter protection choices early — before copycats appear.

Copyright protection for textile designs

Under the Copyright Act 1968 (Cth), copyright can subsist automatically in an “artistic work”, provided it is original and reduced to material form. This includes drawings, illustrations, and works of artistic craftsmanship.

For textile designers, copyright commonly arises in:

• two-dimensional fabric patterns
• surface designs and repeats
• illustrative motifs applied to textiles
• original sketches or artwork used as the basis for production

The attraction of copyright is obvious: it is automatic, lasts a long time, and does not require registration in Australia.

However, copyright protection becomes complicated once a design is industrially applied.

The industrial application problem

Australian copyright law draws a sharp line between art and industry.

Where an artistic work is applied to a product that is industrially manufactured (generally more than 50 articles), copyright protection can be lost or limited, unless the work qualifies as a work of artistic craftsmanship.

This interaction is governed by Part III Division 8 of the Copyright Act, which operates in tandem with the Designs Act 2003 (Cth).

In practical terms, this means:

• a beautiful textile pattern may be protected by copyright before mass production
• once applied industrially, copyright may cease
• unless the work is a “work of artistic craftsmanship”

This is where many designers come unstuck.

What is a “work of artistic craftsmanship”?

The phrase “work of artistic craftsmanship” has been considered extensively by Australian courts and is not easy to satisfy.

Key principles emerging from the case law include:

1. the work must exhibit artistic quality, not merely visual appeal
2. craftsmanship must be central, not incidental
3. functional or commercial considerations must not dominate
4. the creator’s intention and process may be relevant

In Burke v Spicers Ltd (1939) 39 SR (NSW) 29, the court emphasised the combination of artistry and skilled craftsmanship.

Aesthetically pleasing vs functional products

More recently, the High Court in Burge v Swarbrick (2007) 232 CLR 336 clarified that not all aesthetically pleasing functional products qualify. In that case, a yacht hull design — although elegant — was not a work of artistic craftsmanship.

The neoprene bag case: a real-world warning for designers

A particularly important Australian decision in this area — and one that resonates strongly with fashion, textile and accessories designers — is State of Escape Accessories Pty Ltd v Schwartz.

In this case, the Federal Court considered whether a popular neoprene tote bag (the Escape Bag) qualified as a “work of artistic craftsmanship” under the Copyright Act 1968 (Cth).

State of Escape Accessories Pty Ltd, a Sydney-based designer and retailer, argued that copyright subsisted in the design of its bag and that similar bags imported and sold by Chuchka Bags infringed that copyright. State of Escape also alleged passing off and contraventions of the Australian Consumer Law.

The copyright claim, however, failed.

Why copyright did not apply

Justice Davies accepted that the Escape Bag involved skill, care and design decision-making. However, that was not enough.

Applying the principles set out by the High Court in Burge v Swarbrick, her Honour held that the bag was not a work of artistic craftsmanship. While it was a work of craftsmanship, its artistic expression was substantially constrained by functional considerations.

In other words, the bag had to be:

• durable and strong
• capable of carrying weight
• comfortable to hold
• resistant to fraying and wear

Those functional requirements dictated much of the final form.

As Justice Davies stated:

“Applying the principles set out in Burge leads to the conclusion that the Escape Bag is not a work of artistic craftsmanship. It is undoubtedly a work of craftsmanship but I am not persuaded that it is a work of artistic craftsmanship, notwithstanding its aesthetic and design qualities.”

Her Honour also rejected the argument that the selection of perforated neoprene and sailing rope handles involved artistic craftsmanship, noting that these were readily available commercial materials and that their combination amounted, at its highest, to an evolution in styling, not artistic craftsmanship.

The copyright–design overlap in action

Because the Escape Bag was not a work of artistic craftsmanship, the copyright–design overlap provisions applied. Once the bag had been industrially applied and sold in quantity, copyright protection was no longer available.

As a result, State of Escape could not prevent competitors from selling similar-looking bags, despite the bag’s popularity, recognisability and commercial success.

Why this case matters for designers

The State of Escape decision is a reminder that:

aesthetic appeal does not guarantee copyright protection
functional products, including bags and textile goods, face a high threshold
copyright may fall away once products are mass-produced
registered design protection is often the safer path for commercial products

For designers of textiles, fashion accessories and functional creative products, this case underscores the importance of choosing the right protection before launch, not after copying occurs.
Judgment link:
Federal Court of Australia – State of Escape Accessories Pty Ltd v Schwartz [2020] FCA 1606
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca1606

Designs law: the often-missed safety net

If copyright is uncertain, design registration may be critical.

Under the Designs Act 2003 (Cth), protection is available for the overall visual appearance of a product, including shape, configuration, pattern and ornamentation — provided it is new and distinctive at the time of filing.

For textiles, this may include:

• fabric patterns applied to products
• woven or embossed surface features
• repeated visual motifs on commercial goods

Crucially, once a design is registered, copyright protection for the same design will generally not apply. The designer must therefore choose carefully — and early.

Choosing the right protection strategy

The choice between copyright and designs protection is strategic, not merely legal.

Designers should consider:

• Is the design intended for mass production?
• Is its value primarily visual or artistic, or commercial and functional?
• How long is protection realistically needed?
• How likely is copying in this market?

In Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd (2009) 81 IPR 378, the court confirmed that failure to secure appropriate IP protection can leave designers exposed, even where copying feels obvious or unfair.

The law does not protect ideas — only the form in which they are expressed, and only if the correct legal framework is engaged.

Misleading or deceptive conduct as a back-up

Where IP rights are uncertain or unavailable, designers sometimes rely on Australian Consumer Law (ACL).

Section 18 of the Competition and Consumer Act 2010 (Cth) prohibits misleading or deceptive conduct. In limited cases, copying that creates market confusion — particularly where branding, get-up or trade reputation is involved — may be actionable.

However, ACL claims are not a substitute for proper IP protection. They are fact-specific, evidence-heavy, and often uncertain.

Lessons for designers and creatives

The key takeaway is this: IP protection decisions must be made early.

Once a textile design is released publicly, options narrow dramatically. Designers who assume copyright will “just apply” often discover — too late — that industrial application has stripped that protection away.

Courts are reluctant to stretch the definition of artistic craftsmanship simply to achieve a fair outcome. As repeatedly emphasised in the case law, commercial success does not equal legal protection.

Final thoughts: weaving creativity with legal foresight

1. Preventing copycats in the arts and design space is not about paranoia — it is about planning.
2. Textile designers operate at the intersection of creativity and commerce. Australian law reflects that tension, offering powerful protection when used correctly, but little sympathy when it is not.
3. Understanding where copyright ends, where designs law begins, and how the two interact can make the difference between confidently enforcing your rights and watching your work unravel in the market.

We believe good legal advice should empower creatives — not overwhelm.

That’s our motto – Legal Ease, not Legalese® in action.

Why this topic matters for creatives and designers

Copying in the arts and design space is rarely accidental.

It often occurs precisely because a design is commercially successful.

What this article highlights is that legal protection is not automatic just because something is creative or original. In Australia, the way a design is classified — particularly whether it falls under copyright law or designs law — can dramatically affect whether a creator can take action against a copycat.

Understanding these distinctions early can:

• reduce the risk of losing protection through industrial application
• inform smarter product launch decisions
• strengthen enforcement options if copying occurs
• avoid costly disputes where rights are unclear or have lapsed

This is especially important for textiles, surface pattern design, furniture, interiors and other product-based creative industries.
References and further reading

Legislation

Copyright Act 1968 (Cth) ss 10, 31, 74–77, Part III Div 8
Designs Act 2003 (Cth) ss 5, 15, 16, 71
Designs Regulations 2004 (Cth)
Competition and Consumer Act 2010 (Cth) sch 2 (Australian Consumer Law) s 18

Cases

Burge v Swarbrick (2007) 232 CLR 336
Burke v Spicers Ltd (1939) 39 SR (NSW) 29
Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd (2009) 81 IPR 378
Status Clothing Pty Ltd v G Star Raw CV (1997) 38 IPR 385
Polo/Lauren Co LP v Ziliani Holdings Pty Ltd (2008) 173 FCR 266

At Sharon Givoni Consulting, we work at the intersection of law, creativity and commercial reality.

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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.