Unpicking the Threads

Unpicking the Threads

The Legal Ins and Outs of Embroidered and Woven Textiles

Many textile designers, fashion labels and fabric manufacturers assume that if they create an original design, copyright law will automatically protect it from copying.

In some cases, that is true. In others, it may not be.

One of the lesser-known aspects of Australian intellectual property law is the interaction between copyright and registered designs. Understanding this distinction can make a significant difference if you later discover that a competitor has copied your work.

When copyright is likely to apply

Let’s start with a simple example.

Suppose you create an original floral pattern and have it printed onto fabric. The design sits on the surface of the material and is not part of the fabric’s structure itself.

In many cases, that printed artwork will be protected by copyright as an artistic work under the Copyright Act 1968 (Cth). Copyright protection arises automatically and does not require registration.

If another business reproduces a substantial part of your original design without permission, you may have grounds to pursue a copyright infringement claim.

Of course, copyright ownership, originality and proof of copying will still need to be established. However, for many printed textile designs, copyright can provide valuable protection.

When things become more complicated

The position can become less straightforward where the design is woven into, embroidered into, knitted into or otherwise embodied in the fabric itself.

Many modern textiles incorporate raised textures, woven patterns, embroidery, beading and other three-dimensional elements. These features can form part of the structure and appearance of the textile rather than simply being printed onto the surface.

In some circumstances, the copyright/design overlap provisions of Australian law may apply.

These provisions are designed to prevent businesses from relying indefinitely on copyright protection for designs that are essentially being used as commercial product designs.

Where a corresponding design has been industrially applied, copyright may not provide the protection that many designers expect.

This is why businesses should not assume that copyright alone will always be sufficient.

The importance of design registration

Where a textile design is intended for commercial production, registered design protection may be worth considering.

Under the Designs Act 2003 (Cth), a registered design can protect the overall visual appearance of a product, including its shape, configuration, pattern and ornamentation.

Registered designs are commonly used to protect products such as furniture, jewellery, packaging, homewares, fashion items and textiles.

Importantly, a registered design can provide enforceable rights against competitors who use a design that is substantially similar in overall impression.

Timing is critical

One of the most important things to understand about design registration is timing.

Although Australia now has a limited grace period for certain disclosures, the safest approach is generally to apply for design registration before publicly disclosing the design.

For example, businesses should think carefully before:

posting images on social media;

displaying products at trade fairs or exhibitions;

publishing catalogues or lookbooks; or

offering products for sale.

Once a design has been publicly disclosed, options may become more limited.

Seeking advice early can help avoid unpleasant surprises later.

What about works of artistic craftsmanship?

There is an important exception that sometimes arises.

Certain works may qualify as works of artistic craftsmanship and continue to receive copyright protection even where the copyright/design overlap provisions would otherwise be relevant.

However, Australian courts have traditionally interpreted this category relatively narrowly. Whether a particular textile or fabric qualifies will depend on its specific characteristics and the surrounding circumstances.

As a result, businesses should be cautious about assuming that a design will automatically fall within this exception.

What if you have not registered the design?

If copyright protection is unavailable and a design has not been registered, all may not be lost.

Depending on the circumstances, other legal rights may still assist. These can include trade mark rights, passing off, misleading or deceptive conduct under the Australian Consumer Law, contractual rights or confidentiality obligations.

However, these claims can be more complex and may not always provide the same level of protection as copyright or a registered design.

The practical takeaway.

The key lesson is simple.

If your design consists of artwork printed onto the surface of fabric, copyright protection may be available.

If the design is woven into, embroidered into, knitted into or otherwise incorporated into the structure of the textile itself, it is worth considering whether registered design protection should also form part of your intellectual property strategy.

The best time to think about protection is before a successful design enters the marketplace, not after copies start appearing.

A little planning at the outset can make a significant difference to the options available if infringement occurs later.

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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.