top of page
The Cost of Inspiration
The Do's and Don't's of Copyright
BCM 113: About
I remember when I was a kid and I’d see something I liked. I would run and grab Mum by the hand saying, “Mum, can I show you something?” She’d follow me and I’d show her whatever dress or t-shirt I wanted. She’d examine the item closely, like a dentist looking for a cavity. I knew what she was going to say next.
“We could make something like that! I could get the template and some fabric… actually I might have something at home.” I’d groan and roll my eyes.
It is the process of liking a design and being inspired to produce something similar that causes so many problems within brands. Alongside the rapid introduction of new designs, trends and fads, it is almost impossible for companies not to produce similar products to other designers. But there is a fine line between inspiration and copying, and a huge price to pay when that line is crossed.
So, what is the cost of inspiration?
Copyright is intellectual material that is owned by the person who created it, and cannot be used by other groups or individuals without the creators permission. Whilst copyright infringement is the use of copyrighted materials without giving proper credit, and therefore claiming it as your own. Lawsuits are filed daily by brands suing other brands for “stealing” their ideas, and it then becomes a battle of who “inspired” who.
One of the most well known infringement cases in the fashion world is the City Beach versus Seafolly saga. In 2010 Seafolly (Seafolly Pty Ltd) was preparing for their 2010-2011 summer range to be released, when coincidentally City Beach (Fewstones Pty Ltd) released two similar prints and another similar embroidery pattern. Only it wasn’t a coincidence at all.
BCM 113: Text
BCM 113: Image
Seafolly sued City Beach for copyright infringement on the grounds of reproducing their designs without a license as well as importing and selling the swimwear made from a fabric containing infringing prints. City Beach argued that there was not enough similarity between the prints and that no substantial part of the work has been taken as a result.
But here is where it gets interesting. Seafolly had also claimed that City Beach had ripped off one of their designs before in 2007, but this matter was settled privately. The court was astounded by the similarity between both of the designs. Emails sent privately within City Beach were used as evidence in court b y Seafolly. In these emails it became clear that City Beach had purchased the items in question from Seafolly as “examples”, and that these were then shown to their designers as “inspiration”. This did not sit well in the court, and furthermore in these emails City Beach referred to their own prints as “Seafolly knock offs”. The emails also exposed that one of the designers from City Beach warned them about using the Seafolly designs in their own products as they looked very alike, but City Beach did not listen to these warnings. No surprises there, City Beach lost the case.
City Beach violated the Copyright Act 1968 in three sections. The first was in violation of the Copyright Act 1968, section 77, due to the, “application of artistic works as industrial designs without registration of the designs”. The second was under section 37 of the Copyright Act 1968 due to importation of infringed materials for sale or hire. Finally, the Copyright Act 1968, section 38 which states that if the copied items are sold then infringement has occurred. In order to compensate for the damages City Beach was forced to pay Seafolly over $250,000 in damages. From this, $80,000 of damages was to account for the loss of sales, $20,000 for tarnishing Seafolly’s reputation and the remaining $150,000 was for additional damages. This case also highlighted the importance of registering designs, referencing materials and recording the development process of each new design. At court Seafolly were able to show documents of their whole design process, from where they first drew their inspiration all the way through to the final product. City Beach had none of this documentation, further implicating them that their designs had been copied. This is why it is critical that brands register their designs through IP Australia, which is responsible for administering patents, designs, trade marks and plant breeder’s rights.
Infringement goes far beyond fashion, even in the technology industry brands have been sued for copyright infringement. City Beach’s payout was nothing compared to Samsung’s when Apple demanded $2 billion in damages over copied patents. The war between Apple and Samsung has been around since time began it seems. They are always in constant competition trying to make their products better than the others. Samsung wanted to pay only $28 million in damages as they argued that they should only pay for the profits attributable to the components of its phones that infringed Apple’s. Apple wanted more money as they calculated the profits made from the entire phone. In 2011 the court ruled in Apple’s favour for Samsung infringing on five of Apple's patents including touch to zoom and the homepage grid on the original iPhone. At this point Apple was set to receive $1.05 billion in damages. Samsung filed multiple appeals pushing the case to the Supreme Court where Samsung settled to pay $539 million in damages. Samsung was inspired by Apple’s design patents, and were lucky enough to avoid the initial $2 billion in damages, but it was a huge risk.
BCM 113: Text
BCM 113: Image
Brands work hard on their products, to create a name for themselves that is associated with originality and quality. Seafolly has become Australia’s number 1 swimwear brand with their stylish and flattering swimwear, and has accumulated a local market share of 35% making it the largest swimwear brand in Australia. Another brand that has made its name is Tiffany and Co. who have shaped the jewellery industry. In 2013 Tiffany and Co. filed a trademark infringement lawsuit against Costco when Costco’s diamond rings contained the word “Tiffany” in their sale signs. This is due to the Costco rings having similar features to that of the genuine Tiffany rings, however this was not the main issue in this case. Unlike the Seafolly v City Beach case where infringed materials were produced, Costco used the Copyrighted “Tiffany” name to help sell their products.
Did Costco use the Tiffany name with the intention of misleading consumers?
This is an interesting case as it could be perceived as trademark infringement, or maybe an innocent misinterpretation? Trademark infringement is the unauthorized use of a company’s trademark on goods and services that is likely to cause confusion. Tiffany and Co. had made such a brand name for themselves selling their iconic diamond rings that in many dictionaries, advertisements and trade publications diamond rings have begun being referred to as having “Tiffany settings”. Initially the case was ruled as a violation of trademark infringement but only now, 7 years later the case was overturned and the Judge admitted to making an improper judgement as Tiffany’s is now not only a brand name but a recognised descriptive term for a specific style of ring setting. Just like City Beach, Costco’s found themselves in a copyright infringement lawsuit except not over materials but a trademark.
There will hopefully never have to be another City Beach vs Seafolly scandal, as this acts as a perfect lesson to all fashion industries that there is a cost to inspiration. Originality is what makes a brand name memorable and it is through stealing other brand’s ideas or even their name to sell products that copyright infringement laws are violated.
It is a fine line between inspiration and copying in this day and age. Be careful not to cross it or you might find yourself in one hell of an infringement lawsuit.
BCM 113: Text
bottom of page