× Your Pre-loved Designer Marketplace.Buy   -   Sell   -   Rent   -   Discover orJust a few more things... New Zealand Australia Keep me posted with exclusive content! By creating an account, you accept Designer Wardrobe's Terms & Conditions and Privacy Policy.In the face of the economic downturn, a new kind of shopper has emerged – the "recessionista" and some firms are cutting corners by copying… In the face of the economic downturn, a new kind of shopper has emerged – the "recessionista". The New York Times reports that the "recessionista" is the new name for the "style maven on a budget". As the fashion conscious focus on low-cost, discount brands, no doubt some fashion firms will look to cut corners. Innovative fashion designers, who spend substantial time, money and effort in the creation of new and original designs, should ensure that cut-price competitors do not freely profit from their investment. On the other hand, creativity in the fashion industry thrives on what has already been done before.

Even the most well known designers appear to borrow, revive and recombine existing designs. So where is the dividing line? Whenever there are allegations of plagiarism, the reaction has been to turn to copyright law. A recent Australian copyright judgment shows that there can be a very fine dividing line between ‘referencing’ and ‘plagiarism’ of another design – and designers should think twice before taking short-cuts in their design process. Elwood designs and sells fashionable clothing aimed at the youth market. In particular Elwood sells a range of college-style, athletic t-shirts with layouts containing central lettering or a logo in which numbers are arranged. One of Elwood’s T-shirt had the numbers ‘9’ and ‘6’ on each shoulder, the arced word ‘ELWOOD’, cursive "Raging Bulls" lettering, the bull’s head image and the words "Durable Denims Co". Employees of Cotton On were directed to create t-shirts using this Elwood t-shirt as a reference, with the same look and feel, yet different.

The only difference, as it turned out, was Cotton On changed the content of the lettering, the numbers, the colours and the images used (see below). piperlime hoodiesThe overall layout remained the same.outfitters hoodies pakistan The law of copyright generally provides a right to stop others copying. bring me the horizon merch sempiternalHowever, the owner of copyright is not entitled to protection against all copying, only copying of his or her own original work. sons of anarchy sleeveless hoodie‘Original’ in copyright doesn’t mean new or novel. dereon hoodies

It simply means it has not been copied, and some degree of skill and effort has been expended in creation.mckenzie hoodie ebay However, there is also a presumed notion underlying the law that states copyright does not protect ideas, but only the expression of them. nfl salute to service redskins hoodieIn theory this may mean, for example, that a fashion designer is free to copy the idea of a little black dress, but cannot copy Marc Jacobs’ version of the little black dress. In fashion, the problem is that it all depends on what you mean by ‘ideas’! To succeed in its action for copyright infringement Elwood needed to show that Cotton On had copied the whole or a substantial part of the design for its t-shirt and that what had been copied was protectable under the law of copyright – i.e., an original expression.

At the first hearing, the trial judge considered that the underlying idea of Elwood’s design was a central logo surrounded by a V shaped pattern of text, with distinctive numbers on each shoulder. The trial judge excluded this idea from her enquiry into whether Cotton On had copied a substantial part of Elwood’s design. In the trial judge’s view what Cotton On had copied was the basic layout of Elwood’s t-shirt. This was not enough to amount to infringement of copyright because what was copied was an unprotectable idea. Needless to say, Elwood appealed and the Appeal Court held that the Trial Judge was wrong. The Appeal Court considered that the interrelationship and arrangement of the various design elements of Elwood’s T-shirt was what made the design original. Unlike the trial judge, the Court put the question of idea/expression aside, and simply focussed on whether a substantial part of Elwood’s design had been reproduced. The Court found that even though the differences in the text and symbols distinguished Cotton On’s T-shirts from Elwood’s, by copying the selection, arrangement and style of the elements in Elwood’s design – the "look and feel" of the design – Cotton On had copied a substantial part of Elwood’s original expression.

This case is a timely reminder that changes to the colour, words or numbers in a design may not be enough to avoid a finding of copyright infringement. Once a court is convinced that someone has unfairly cut a competitive corner by setting out to deliberately and minimally alter a garment, the court will not be easily dissuaded that the alterations have been sufficient. The Elwood decision is also significant because the Court found that by taking the overall layout and arrangement of elements in Elwood’s design, Cotton On copied a substantial part of Elwood’s copyright. This may mean that designers cannot copy the overall layout and arrangement of features in a garment and alter the details, if the overall look and feel of the T-shirt remains the same. This poses a problem for fashion houses such as Cotton On, who operate under a business model that relies heavily on taking prior garments as ‘inspiration’. In the United States, Forever 21, a large women’s fashion chain, has also attracted lawsuits from Anna Sui, Gwen Stefani and Diane Von Furstenburg for copying their designs with minor alterations.