You have seen something inspiring. It may be an entire online business or a blog entry, but you want to use it as a basis for your own creation, which you believe will be even better than the source of your inspiration. How do you go about this without falling onto the wrong side of copyright law? In other words, how do you avoid copyright infringement?
What is Copyright?
Firstly, you need to remember that copyright does not protect ideas, just the way in which they are expressed. So the concept behind the online business or blog entry is not protected by copyright. You are perfectly free to come up with your individual creation using that concept. What you are not free to do is take what you see and blatantly copy it. It sounds like stating the obvious, but there can be a fine line between infringing someone’s copyright and coming up with original work. It comes down to whether you are reproducing a substantial part of the original work. What is a substantial part? This is where the complexity (and the fun) begins.
What is ‘substantial’?
If we have a look at two recent high-profile copyright cases, the only thing that becomes clear is that the distinction between substantial and insubstantial is not all that clear! The first case concerns an action brought by Channel 7 against Channel 9 concerning their reality cooking shows, My Kitchen Rules (MKR) and The Hotplate. Channel 9’s Hotplate aired in July 2015 and immediately many viewers were publicly commenting that it seemed to be a rip-off of Channel 7’s MKR, which had been running for six seasons. Channel 7 sued Channel 9 for copyright infringement saying Hotplate was “remarkably similar” to MKR. The court didn’t agree this time around and refused to grant Channel 7 an injunction to stop Channel 9 from airing the remainder of the series.
The second case to consider is the Land Down Under case. The copyright owner of the popular children’s song “Kookaburra sits in the old gum tree” sued Men at Work for infringement of copyright, alleging that the signature flute melody in the iconic song “Land Down Under” was copied from Kookaburra. The court agreed that Men at Work had reproduced a substantial part without consent and ordered them to hand over a portion of the royalties.
Subjectively speaking, the MKR format was much more recognisable in the Hotplate series than Kookaburra was recognisable in Land Down Under but the courts decided differently as far as a substantial part was concerned. What is certain is that it is a question of quality and not quantity that determines whether something is a substantial part. Is the reproduced part distinctive and recognisable? Does it immediately make someone recall the original work?
So what is the take-home message in all of this? From a practical point of view, to avoid inadvertently infringing someone’s copyright, take inspiration from the broad idea or concept underpinning the work without reproducing it in your creation. In other words, if you’re inspired by a striking pattern on another designer’s outfit, make sure the actual design is out of sight and mind when you sit down and create your print for your fashion line.
It is a simple step but it could save your reputation and many headaches down the track! If you need help discerning between copyright infringement and what is insubstantial in terms of similarity, our IP lawyers would be happy to assist. For more information on how to avoid copyright infringement, get in touch on 1300 544 755.
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