Copyright infringement found by taking the “look and feel”
Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd  FCAFC 197
Only a lawyer with too much time on his or her hands could embrace the idea/expression dichotomy in copyright law as a topic of meaningful discussion. However, with the recent decision of the Full Federal Court in this case, participants in the fashion and design industries are likely to take a good deal more interest in the topic.
Facts of the case
Elwood designed and produced the following t-shirt which it called the “New Deal” t-shirt.
Cotton On subsequently produced the following t-shirts (among others) which it admitted was a copy of the shape and form of the graphic developed by Elwood.
The question which arose for decision was whether the Cotton On t-shirts were an infringement of the copyright of Elwood subsisting in the design on the New Deal t-shirt.
It has long been an axiom of copyright law that copyright protects the expression of an idea but not the idea itself. What Cotton On argued was that the shape and form of the graphic on the Elwood t-shirt was the idea behind the design and therefore not protectable by copyright. The Judge at first instance agreed with this argument because she characterised the central logo around which numbers were arranged in a v-shaped pattern of arched text with numbers at the shoulder level as being the “idea” comprised in the design. Once the Judge had characterised those elements of the design as the concept or idea behind the design, copyright was not available to protect against the copying of those elements.
Elwood appealed to the Full Federal Court and that appeal was upheld. The Appeal Court disagreed with the primary Judge that the layout of the graphic elements amounted only to the idea behind the design. The Appeal Court unanimously held that the copyright work was comprised of the whole of the graphic including the spatial elements. Thus, the layout of the graphic elements was considered to be a matter of expression and not merely a matter of idea or concept. As it was the layout of those graphic elements which had been taken, the Appeal Court held that the “taking” was unlawful.
The reasoning of the Appeal Court can be understood in terms of an enquiry as to what constitutes the design in which copyright subsists. As a design operates primarily as a visual work, it will often be the case that spatial considerations predominate over graphical similarities or dis-similarities.
The case has important implications for the fashion graphic design industries, in particular, because it highlights the importance of the spatial elements or layout of an artistic work for copyright purposes. In the words of the Appeal Court, the layout selection, arrangement and style of the graphical elements of the Elwood design gave it a particular “look and feel”. By taking the layout and these other elements of expression, Cotton On took a substantial part of the Elwood design in which copyright subsisted. In industries where “trends” are followed and copying with variations is rampant, those doing the following or copying do so at their peril. In cases where the intention is to follow a trend, it will be prudent not to do so by direct visual reliance on a third party’s design.