A recent case in the Federal Magistrate’s Court has provided some interesting insights as to when something based on a pre-existing work will be protected by copyright

The first part of the case related to a fabric design composed of images of overlapping butterfly wings, positioned like flowers

The Federal Magistrate accepted that the new fabric design was an “artistic work” for copyright purposes. He also accepted that it was “original” - and therefore protected by copyright – even though it looked very similar to an earlier design

The reason for this was that, even though the design appeared to be based on a British designer’s artwork, the new version “took five or six hours to create” and “More importantly, its creation required some independent creative or technical and possibly intellectual effort”. It was not just a copy of the earlier design

The second part of the case related to whether or not the company that imported dresses made up of allegedly infringing rolls of the fabric was liable for indirect infringement and authorising infringements. Unfortunately for the applicant company, while it was able to satisfy the Court that the fabric design was protected, it couldn’t satisfy the Court that the respondent company was liable for having infringed that copyright. Moreover, the Federal Magistrate was satisfied that the respondent company had merely bought the fabric and then had it made up into the dresses; it had not been instrumental in copying the design onto the fabric without permission

The case is available at http://www.austlii.edu.au/au/cases/cth/FMCA/2011/519.html

For advice on visual arts and design issues, contact copyright lawyer Adam Simpson.