The fine line between inspiration and copyright infringement

by Irene Zeitler

It is common practice for designers to look to a variety of sources for inspiration. Frequently the source is foreign and consists of a garment or piece of fabric which has been obtained from an upmarket retailer, a trade fair or an Asian manufacturer's premises.

Most designers are well aware that Australian copyright law generally prohibits copying someone else's artistic works. Many will also be aware that copying an artistic work obtained from overseas will not avoid copyright infringement. Australia is a signatory to an international treaty under which citizens of participating countries can demand that their artistic works be protected under the existing copyright laws of each participating country.

The question which has proved particularly vexing for designers who seek inspiration from the artistic works of others is how to determine when they have crossed the line from merely being 'inspired' by to being potentially accused of copying someone else's artistic work.

As legal advisers on copyright law we are frequently told by people involved in the clothing and footwear industry that in order to avoid copyright infringement all you need to do is:

  • change the colour of the design

  • change 10 per cent of the design, and/or

  • leave some elements out of or introduce some new elements to the design.

  • Unfortunately, none of these views is correct and any designer that relies on any of these misconceptions of the law is seriously at risk of being at the receiving end of a copyright infringement action.

    The answer to the question of when 'inspiration' becomes copyright infringement is far more complex and can only be answered once the nature of copyright protection is more fully understood.

    Vella's case

    A recent Full Federal Court decision is a good example of the application of copyright principles to the alleged copying of someone else's artistic works. In Cummins v Vella, the Plaintiff was Dean Vella, a Queensland artist who has painted numerous pictures of daisies, gerberas, irises and other flowers as well as yachts in a naif style, using bright primary colours and an impasto technique applying paint directly from a tube. Mr Vella sued Greg Cummins and his teenage daughter Joelle for copyright infringement. Mr Cummins was a former plasterer who readily admitted being familiar with Mr Vella's paintings. In fact, Mr Cummins stated that Mr Vella had 'inspired (him) to become serious about being an artist'. Mr Cummins subsequently started to paint (and also taught his daughter Joelle to paint) in the same style as Mr Vella, using similar colours and subject matter and an impasto technique.

    Mr Vella initially succeeded in his claim for copyright infringement. Mr Cummins and his daughter, however, successfully appealed to the Full Court of the Federal Court. In summary, the Cummins' success was based on the following reasoning:

  • Copyright law does not protect the 'idea' of a work. Rather, copyright law protects the material form in which an idea is depicted. Mr Cummins and his daughter Joelle were therefore entitled to absorb the style, concepts and techniques adopted by Mr Vella

  • Insofar as the subject matter of the Cummins' works was similar to the subject matter of Mr Vella's works (eg daisies, irises, gerberas etc) it was important to note that these were all common objects which had been simply portrayed by Mr Vella. There will therefore inevitably be similarities if someone else paints such an object using a similar style and technique. The consequence of this is that small differences are likely to be sufficient to establish non-infringement. Unless that was so, there would have been a statutory monopoly in naif impasto style paintings of daisies and irises for Mr Vella's lifetime and 50 years thereafter. In other words, Mr Vella would have been given protection in the 'idea' of flowers painted in this style which would be inappropriate
    Each alleged infringement must be judged on its merits. It was inappropriate for the Judge at first instance to find that because, in his view, some of the paintings by the Cummins' infringed Mr Vella's copyright in some of his works, the same conclusion inevitably follows for all other works of Mr Vella. The Appeal Court referred to this as a result of extrapolation which was clearly contrary to copyright law.

  • Interestingly, given the choices between setting aside the trial judgment and finding in favour of Cummins; giving a different judgement; remitting the matter to the trial judge to be re-heard or ordering a new trial, the appeal judges adopted the first option setting aside Vella's first instance win and finding in favour of Cummins.

    Persuasive to the Appeal Judges was the fact that 'it would not be fair or reasonable in our opinion to let Mr Vella have in effect a second chance to run his case differently'.

    It is unfortunate that the Appeal Judges did not enter a judgment setting out the Court's own application of the law to the facts because although the case gives excellent insight into how not to assess copyright infringement it would have been of considerable assistance for the Full Federal Court to deliver a judgment on how the test is properly applied.

    Issues which designers should consider

    Despite the missed opportunity, Vella's case does illustrate that determining whether the line from inspiration to copyright infringement has been crossed is a two stage process.

    The first stage is to determine if the designer has merely adopted the same style, concepts or techniques. If the answer is yes, then there will not be any copyright infringement.

    If the answer to the question is no, you need to go to the next stage and ask if the subject matter of the work has been substantially reproduced. Where the subject matter is a simply depicted common object, small differences may be sufficient to avoid copyright infringement. It follows that where the subject matter is more complex or fanciful, similarities are less likely to be considered coincidental and that there is therefore a greater risk that a subsequent work will be considered to infringe copyright in an earlier work.

    In assessing whether a work has been substantially reproduced, designers should also be wary of focusing too intently on technical differences. Vella's case makes it clear that the decision as to whether or not a work has been reproduced is one for the Judge to make and cannot be delegated to experts. The Judge is required to look at the earlier work and the later work and form an overall impression, based on both qualitative and quantitative considerations, as to how close the alleged infringing work is to the original. Technical differences may not always be considered sufficient to change the overall impression.


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