Can I copy clothing pattern designs?
Updated: Dec 8, 2022
No. You cannot even make substantial reproductions of clothing designs. That would constitute copyright infringement.
In the case of Seafolly Pty Limited v Fewstone Pty Ltd  FCA 321, Fewstone Pty Ltd (which trades as "City Beach") copied some bikini designs of Seafolly.
City Beach's designs were not exactly the same as the bikini designs of Seafolly, but were clearly substantial reproductions.
The Court ordered that City Beach to pay Seafolly $250,333.06 as compensation. The breakdown of the compensation was as follows:
Seafolly asked for $240,999.18 in damages, but the judge only awarded $80,336.06. The Seafolly bikinis were significantly more expensive than the City Beach bikinis, but City Beach's targeted a different demographic to Seafolly.
Seafolly asked for $70,000 in compensation, but the judge only awarded $20,000. There was no evidence of consumer confusion, but the judge conceded that City Beach's bikinis would damage Seafolly's reputation for originality and exclusivity and could decrease consumers' willingness to buy Seafolly's bikinis at higher prices.
Seafolly asked for $300,000 in additional damages for flagrant infringement, but the judge only awarded $150,000. City Beach continued to sell the infringing bikini designs after it was put on notice of Seafolly's copyright claim and after proceedings were issued. City Beach's witnesses were unconvincing. City Beach sold 11,638 bikinis. City Beach avoided the design costs incurred by Seafolly in developing the designs. The judge wanted to deter other parties within the industry from engaging in conduct like City Beach..
Seafolly also claimed "conversion damages" (under section 116 of the Copyright Act 1968). A conversion occurs when a person without authority or permission intentionally takes the personal property of another or deprives another of possession of personal property.
Justice Dodds-Streeton refused to grant conversion damages because the damages for lost profit, damage to reputation and additional damages were deemed sufficient.