What happens if your clients ask you to create ‘something similar’

What happens if your clients ask you to create ‘something similar’

Let’s start with a quote:

“You can’t use up creativity. The more you use, the more you have.” — Maya Angelou, poet, singer, memoirist and civil rights activist

Angelou’s wisdom speaks to something every creative knows deep down: the more you lean into your own ideas, the more they multiply. But in a world of fast briefs, tight deadlines and Pinterest boards galore, it can be tempting — or even client-directed — to stray into dangerous territory.

When a client says: “We love this pattern — can you do something like it?” it’s not just your imagination that’s being put to the test. It’s your legal radar, too.

Here’s the thing. In the creative world, imitation may be flattery — but in copyright law, it can also be infringement. As lawyers, we know all too well how easy it is to step over that invisible line from homage to legal headache. The distinction between inspiration and copying is notoriously fine, subjective and often settled by lawyers, not designers.

As the old saying goes in legal circles: “Where there’s a hit, there’s a writ.”

The myth of the 10% rule

There’s a popular belief that if you change someone else’s work by 10%, you’re in the clear. Sorry to break it to you: this is legal fiction. Under Australian copyright law, there’s no such rule.

The real legal test is whether you’ve copied a substantial part — and that doesn’t mean a large chunk. It could be a tiny but recognisable detail: a distinctive shape, a unique colour palette, a memorable motif. It’s not the quantity, it’s the quality.

And yes, this is why people end up in court.

The Ed Sheeran example – and the chord progression conundrum

This dilemma is not unique to visual creatives. In 2023, a U.S. federal court considered whether Ed Sheeran’s “Thinking Out Loud” copied Marvin Gaye’s “Let’s Get It On.” The plaintiffs claimed the groove was too similar. Sheeran’s defence? It was just a common chord progression — musical building blocks used in thousands of songs.

The jury agreed with Sheeran. But the trial highlighted a bigger issue: creativity operates in a shared space, but ownership exists in the specifics. In law, we don’t copyright ideas or style. We protect expression. (Read more about the case here – https://hls.harvard.edu/today/did-ed-sheeran-copy-marvin-gayes-lets-get-it-on/#:~:text=For%20his%20part%2C%20Sheeran%20has,chord%20progressions%20in%20pop%20music.)

Case studies to learn from

1. Indigenous inspiration gone wrong

We once had a surface designer approach us in a panic. A client asked her to create something “Aboriginal-inspired.” They insisted it was “just dots” and shrugged off her concerns about permission. She instinctively knew something didn’t sit right. And she was right.

In Milpurrurru v Indofurn Pty Ltd [1994] FCA 975, the Federal Court found that carpets imported into Australia containing Aboriginal artworks were infringing copyright and causing cultural harm. It wasn’t just a case of misuse — it was a case of failing to respect sacred stories and Indigenous law. You can read the actual case here: https://jade.io/j/?a=outline&id=195477

Designers who reproduce or “borrow from” traditional Indigenous motifs without permission not only risk legal action — they can harm communities and reputations too.

2. The swimwear saga

Then there was the boutique fashion brand who commissioned a designer to “reimagine” a famous floral pattern from a well-known Australian swimwear company. New colours, yes — but unmistakably the same structure, layout and flower stylings.

Sound familiar? That’s because it echoes Seafolly Pty Ltd v Fewstone Pty Ltd [2014] FCA 321, where City Beach was ordered to pay over $250,000 in damages for using Seafolly’s swimwear as a design reference. The court found objective similarity and clear intent — including emails referring to it as a “Seafolly knock off.” Read the case here – https://jade.io/j/?a=outline&id=318799

So what does copyright actually protect?

Under the Copyright Act 1968 (Cth), copyright protects the expression of original artistic works — not the idea, not the vibe, not the inspiration. It automatically applies the moment you create an illustration, surface pattern or digital artwork. You don’t need to register it in Australia.

Copyright gives you the exclusive right to reproduce, publish, and license your work. But if someone else takes a substantial part — even by accident — they could be liable.

And if you’re producing for a client, the risk escalates. The more commercial the use (think product packaging, apparel, branding), the greater the consequences.

Lawyers and licensing: How to stay safe

Here’s the golden rule: when in doubt, ask. If a client provides an image and wants you to copy, tweak or be “inspired,” ask: Do they own this image? Is there permission?

If not, tread carefully.

Sometimes the safest path is to obtain a licence. Licensing ensures the original artist is fairly paid, and your creative conscience (and legal record) stays clean. This is especially important for:

• Using Indigenous artwork (consult with the community or rights holders)
• Referencing famous fashion prints
• Reinterpreting logos or characters
• Sampling music, photographs or literature
• Organisations like the Copyright Agency can assist with visual art licences, while APRA AMCOS can help musicians and producers. Their website is here: https://www.copyright.com.au/

We don’t just defend creativity — we nurture it

There’s a misconception that lawyers only show up when something goes wrong. In fact, legal advice at the beginning of a creative project can help protect the originality that makes your work valuable.

We’re not here to stifle your style — we’re here to make sure it’s truly yours.

And let’s face it: originality is more satisfying anyway.

As Maya Angelou, an American memoirist, poet, said “You can’t use up creativity. The more you use, the more you have.” So instead of recreating someone else’s idea, tap into your own.

There’s more where that came from.

What to do when a client gives you someone else’s design as a reference

Ask for the origin – Where did this come from? Can they prove they have rights?

1. Use your own voice – Borrow the mood, not the motif. Be influenced, not derivative.
2. Be upfront – Let your client know what you can and can’t do legally.
3. Have a contract – Spell out who owns what and clarify responsibilities for third-party materials.
4. Document your process – Keep drafts and notes. They might save you later.

---

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.