Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197

FEDERAL COURT OF AUSTRALIA

Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197

COPYRIGHT – original artistic work – T-shirt with design comprising words, numerals and logo arranged in a distinctive manner to suggest USA college sporting team – also an associated "swing tag" – whether the designs were drawings and therefore artistic works – whether they were literary works because of presence of words and numerals – distinction between literary works and artistic works – copying admitted – whether respondent had taken only underlying idea rather than expression – idea/expression dichotomy – layout giving particular "look and feel" as artistic element – whether respondent had taken a substantial part of applicant's work by taking layout giving rise to the look and feel. Held: (1) both T-shirt and swing tag were drawings and therefore artistic works, not literary works; (2) by taking layout giving rise to look and feel, respondent had taken original artistic element, and therefore a substantial part of the artistic work. Copyright Act 1968 (Cth) ss 10(1), 32, 202 Federal Court of Australia Act 1976 (Cth) ss 24(1)(a), 27

Anacon Corporation Ltd v Environmental Research Technology Ltd [1994] FSR 659 cited Aubrey Max Sandman v Panasonic UK Ltd [1998] FSR 651 cited Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 applied Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 cited CSR Ltd v Della Maddalena (2006) 224 ALR 1 cited Data Access Corporation v Powerflex Services Pty Ltd (1999) 202 CLR 1 applied Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] FSR 121 cited Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] WLR 2416 applied Dorling v Honnor Marine Ltd [1965] Ch 1 cited Electronic Techniques (Anglia) Ltd v Critchley Components Ltd [1997] FSR 401 cited Fox v Percy (2003) 214 CLR 118 cited Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 cited Knitwaves Inc v Lollytogs Ltd (Inc) 71 F3d 996 (2d Cir 1995) cited Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 277 applied L B (Plastics) Ltd v Swish Products Ltd [1979] RPC 551 cited Lott v JBW & Friends Pty Ltd (2000) 76 SASR 105 cited Metricon Homes Pty Ltd v Barrett Property Group Pty Ltd (2008) 75 IPR 455 applied Millar & Lang Ltd v Polak [1908] 1 Ch 433 cited Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 applied Roland Corporation v Lorenzo & Sons Pty Ltd (1991) 33 FCR 111 cited Roth Greeting Cards v United Card Co 429 F2d 1106 (9th Cir 1970) cited Sid & Marty Krofft Television Productions v McDonald's Corp 562 F2d 1157 (9th Cir 1977) cited S W Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 cited Woodtree Pty Ltd v Zheng (2007) 164 FCR 369 applied Goldstein on Copyright (Aspen Publishers, 3rd ed) Vol 1 Nimmer On Copyright (LexisNexis, looseleaf) Vol 4 ELWOOD CLOTHING PTY LTD (ACN 079 393 696) v COTTON ON CLOTHING PTY LTD (ACN 052 130 462)