The Full Court of the Federal Court in Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd  FCAFC 197 late last year upheld an appeal from Gordon J, deciding that a T-shirt that copied the look and feel of another T-shirt was an infringement of copyright, even though none of the words, numbers or trade marks was copied. The T-shirt that was copied had the numbers 9 and 6 printed one on each front shoulder. On its front it had the word “ELWOOD” written prominently in a downward curve and underneath in smaller cursive script the words “Durable by Design”. Underneath a logo of a bull’s head appeared with the words “RAGING BULLS” in an upward curve with some smaller writing underneath. The whole arrangement made a V shape on the front of the T-shirt. On the back the words “RAGING BULLS” appeared in cursive script in a downward curve. Then appeared the numbers 96 in very large print. Underneath was smaller writing in an upward curve.
Two questions were decided on the appeal, the first being whether the work on the T-shirt was an artistic work or a literary work – the significance being that if it was a literary work there was no copyright infringement as none of the words had been taken. The Full Court held that it was an artistic work. It accepted the principle that, when deciding whether a work is a drawing, the issue is whether the work can be said to have a visual rather than semiotic function. The Full Court held there was a single artistic work on the T-shirt.Secondly, the Full Court considered that a substantial part of the T-shirt had been taken so as to constitute an infringement of copyright. It had taken the look and feel of the work which arose from the selection, arrangement and style of the elements of the work regarded as a whole (the text, colour, font, shape and so on). This is significant as it may effectively extend the reach of copyright protection.