What Goes Down During the Daylight Robbery of Swimwear Designs?

Can you get away with 'copy and pasting' someone else's designs by calling it inspiration? What are the consequences as a designer? How can you avoid this?

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Australian fashion designers are incessantly faced with both ethical and legal dilemmas in the design and production process of garments. In order to meet consumer demands, their designs must visually fit into the current market, whilst staying authentic and original. Therefore, taking inspiration from current and well selling designs can be a common practice for some designers. The key word being, inspiration. Some like to refer to it as having the thread to creative success dangling in front of your face and having to ignore it, or at least admire the way it's hanging. Alternatively, some designers choose to grab the thread, unaware of the one way ticket to court for copyright that accompanies it.

Now, more than ever the demand for slow fashion is on the rise. However, with this ethical demand comes expense for consumers. As a result, fast fashion companies are seen replicating designs from smaller brands by rapidly producing and selling them at a cheaper price, targeting those who cannot afford to purchase ethically. This is the core reason as to why copyright infringement is significantly evident in the design industry. Moreover, a reason as to why designers must be aware of this issue and the following case.

Copyright Infringement is closely analysed within the Fewstone Pty Ltd vs. Seafolly Pty Limited legal case that occurred in 2014. Fewstone Pty Ltd, who trade as the well known surf and swimwear retail brand City Beach, were accused by swimwear brand Seafolly, for the unlicensed use of three artworks in three of their "knock off" bikini designs. Whilst City Beach argued against these allegations, the truth was soon revealed in court, resulting in harsh damages.

What Exactly is Copyright?

Copyright refers to the legal protection of the form of expression of works such as images, designs or articles. The intangible work created through this expression becomes intellectual property, defined as the creations of the mind that are legally protected. When this property becomes infringed, it effectively means that the individual or company who has been accused for infringement has failed to comply with the copyright laws. To understand the foundations of copyright in relation to this case, you should understand that it is not the idea of designing bikinis that breaches copyright, and instead the way they are designed.

Although, there are a number of exceptions in The Copyright Act 1968 that allow individuals to be exempt from copyright, in turn aiming to encourage the sharing of knowledge. Whilst this list of over 90 exceptions can go on for hours, the overarching categories of copyright exceptions according to the Australian Libraries and Archives Copyright Coalition, can be examined below.

Exemptions for Copyright Infringement

1. Fair Dealing Exceptions

2. Library and Archive Exceptions

3. Private Copying Exceptions (format and time-shifting)

4. Other

However, no exceptions were relevant in this battle between Seafolly and City Beach.

What Designs Were Infringed and How?

The three original artworks that were infringed were titled 'English Rose', 'Covent Garden' and 'Senorita', all claimed by Seafolly under copyright laws, originally designed by both "in house" and external designers for the brand. The substantially corresponding designs from City Beach were titled 'Fiesta Rosette' (replicating English Rose), 'Fiesta Sienna' (replicating Covent Garden) as well as their 'Fiesta Richelle' embroidery which drew similarities to Seafolly's Senorita artwork. A visual comparison of the designs is exhibited below.

English Rose (Left) vs. Fiesta Rosette (Right)

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Covent Garden (Left) vs. Fiesta Sienna (Right)

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Senorita (Left) vs. Fiesta Richelle (Right)

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Ultimately, the corresponding designs by City Beach transgressed The Copyright Act 1968 in three separate sections. The initial violation of The Copyright Act 1968 Section 77, consequentially occurred due to the “application of artistic works as industrial designs without registration of the designs”. In relation, the importation of infringed materials utilised for sale and hire breached The Copyright Act 1968 Section 37, whilst the action of selling the infringed designs violated The Copyright Act 1968 Section 38.

What Went Down in Court?

It was in court on 1st April 2014, that it became clear these violations were no accident or coincidence. According to the supporting evidence put forward by Seafolly, there were private exchanges made through email by City Beach relating to the similarity of the designs. It was exposed that City Beach allegedly purchased the three original Seafolly designs in order to pass onto the designers as 'inspiration'. Similarly, becoming evident that City Beach were aware of their use of Seafolly's artworks, as an email used for evidence written by a City Beach design coordinator stated,

"Here is the picture of the City Beach artwork and the 2nd picture is the Seafolly Print. As I mentioned, the styles are not the same – it’s just the artwork."

If this isn't bad enough, City Beach were also accused of dismissing warnings and accusations relating to the similarity of the designs made by team members in emails, whilst continuing to refer to them as "Seafolly knock offs". Despite this evidence, City Beach denied the accusations of copyright in the "form of expression", and stated they only took inspiration from the underlying concept of the designs. In further defence, they also admitted their design subcontractor 2Chillies Pty Ltd was aware of the existing Seafolly designs but denied they were knowledgeable of Seafolly's copyright ownership. Suspicious, right?

So, What Was the Outcome of the Case?

As assumed, Judge Dodds-Streeton was astonished when faced with the similarities between the designs, resulting in Seafolly Pty Limited winning the case. Fewstone Pty Ltd. was forced to pay up to $250,000 in damages to Seafolly, which in turn were broken down into separate areas of accountability. $20,000 of this cost accounted for the subsequent damage of Seafolly's reputation, whilst $80,000 covered their loss of sales during this period. The further $150,000 was utilised to account for other remaining damages caused by this infringement. For example, damages such as the increased stress placed on Seafolly designers during this time.

The outcome of this copyright case draws immense similarities to the Elwood Clothing Pty Ltd versus Cotton On Clothing Pty Ltd case in 2008. Within this case, Cotton On were accused of infringing both t-shirt and swing tag designs which corresponded to existing designs from Melbourne clothing company Elwood. Their use of phrases, layout and 'look and feel' of the artworks on the pieces determined this level of infringement, which was significant. Moreover, resulting in damages ordered by Justice Gordan for Cotton On up to $280,000. Thus, reinforcing the prevalence of this legal issue in the design and media industry.

How Can Designers and Creators Avoid Copyright?

As a result, lessons learnt for designers should be avoiding the unlicensed use of existing designs and ensuring that our own work is registered appropriately. It should also be understood that these unethical actions undertaken by designers have adverse implications on both our own reputation and others in the field. Therefore, it's of notable importance that both emerging and current designers are aware of copyright infringement. It's also paramount that not only designers, but all media creators are aware of IP Australia, which allows Australians to register their own creative ideas and brands. Ultimately, protecting the rights of designers and media professionals, and striving to promote a legal and ethical media presence.

Overall, illustrating how the Fewstone Pty Ltd vs. Seafolly Pty Limited case has exhibited the consequences of copyright infringement for designers and media professionals, amplifying the significance of awareness surrounding this issue. Ultimately, encouraging and reminding media professionals to create work in an ethical and legal manner, subsequently avoiding making themselves broke!