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Sportsgirl Got Sabred

Not a food fight this time, but there’s real passion in fashion in the recent spat between Sportsgirl and high end Sydney brand Maison de Sabre.

Sportsgirl has recently removed from sale some miniature wallets shaped like fruit after Maison de Sabre accused them of copying their products.

Maison de Sabre says that in 2023 it launched its now very popular fruit-shaped charms, which are quite distinctive.  More recently, Sportsgirl started selling miniature wallets, some of which are seen below side by side with the relevant Maison de Sabre products (obviously the Sportsgirl products don’t have “Maison de Sabre” printed on them).

   

Images: Courier Mail

Well, imagine that – Sportsgirl releases some products strikingly similar to Maison de Sabre’s best-sellers. No logos are copied, and the products aren’t passed off by Sportsgirl as being those of Maison de Sabre (we can assume Sportsgirl hung a Sportsgirl label on them), and Maison de Sabre is renowned for these designs. Is Sportsgirl legally in the wrong?

What About Copyright?

In Australia, copyright protects original artistic works. However, once a design is industrially applied—meaning it’s mass-produced—copyright protection typically doesn’t apply. So, if Maison de Sabre’s design has been sold widely, it’s likely not protected by copyright anymore.

Passing Off / Misleading or Deceptive Conduct?

Passing off occurs when one brand misrepresents its products as those of another, causing consumer confusion. But if Sportsgirl clearly branded the products and didn’t suggest any association with Maison de Sabre, it’s challenging to claim passing off.

For the same reasons, it could be difficult to establish misleading or deceptive conduct, or false representations, in breach of the Australian Consumer Law.

Registered Designs: Your Fashion Shield

The most robust protection for product designs in Australia is through registering the design. This grants exclusive rights to the visual appearance of a product.

If Maison de Sabre had registered its designs, it could take action against Sportsgirl for infringement.

⚖️ The Verdict

Without a registered design, and if there’s no misleading branding or consumer confusion, Sportsgirl’s original actions in releasing those products for sale might have been legally permissible (even if not a great look / ethically questionable).

Again, Sportsgirl has withdrawn those products now, so perhaps crisis averted for either party.

It’s still a stark reminder for designers: protect your creations proactively.

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Caramel slice of heaven, or recipe for disaster?  There has been calamity in the kitchen (or at least, all over social media) as two cooks have a donnybrook over a cookbook – and it’s not a good look.

The rich buffet of available cooking puns aside, various plagiarism accusations have been flung by Nagi Maehashi (author of RecipeTin Eats) at Brooke Bellamy (author of Bake With Brooki), including about a caramel slice recipe Ms Bellamy has published in her Bake with Brooki book.

Ms Maehashi says she wrote that recipe and that Ms Bellamy has plagiarised it in her book – which of course Ms Bellamy denies.  To demonstrate her “evidence”, Ms Maehashi posted the below on her Instagram page:

Maehashi has compared her caramel slice recipe with Bellamy's as 'evidence' of copying. Picture: Instagram

Interesting (and tasty) … but … it’s caramel slice – even this author can make caramel slice.  So, what rights have been infringed?

Well, original works expressed in a material form may be protected by copyright – so if Maehashi’s recipe is original and she published it first then perhaps she has a point against Bellamy.

The bigger problem is whether the recipe Maehashi published is actually sufficiently “original”.  While those measurements might at first glance seem oddly specific (which might support an argument that it was original), they are individually very common measurement amounts.  Maehashi would need to be able to prove (if she was going to pursue the argument) not only that those measurements in that combination were her original works, but also that the rest of the recipe (such as the ingredients and the method) were also originally hers, and not just some slight tweaks on her part of other well-known recipes and methods.

Maybe this is why there is a cry of “plagiarism” instead of “breach of copyright” – plagiarism is not a legal claim as such, but is often more loosely referred to when there has been apparently copying of some parts of a work that might not actually amount to a breach of copyright (which seems to be the case here).

The biggest challenge for cooks in Maehashi’s position to make a legal claim for breach of copyright, even if those precise measurement combinations are hers, is that the rest of the recipe and that method are in fairness pretty well known – that’s simply how you make caramel slices.

Copyright does not protect “ideas” – not even really tasty ones.  Copyright only protects the original expression of those ideas.

If I like my Corn Flakes with precisely 425 mls of milk of a morning, that doesn’t mean I can publish that as my own original Corn Flakes recipe and have copyright protect me.

Perhaps the plagiarism claim has been overbaked?

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Robot Rumble: Motorola and Hytera Throw Down Over Code

It wasn’t exactly Rock ’Em Sock ’Em Robots, but the recent battle between Motorola Solutions and Hytera Communications was certainly a copyright and tech-world punch-up — with real ramifications for copyright law relating to software.

Motorola accused Hytera of pinching thousands of confidential documents and source code files — the digital DNA of Motorola’s radio communications tech — and using them to turbocharge Hytera’s own products.

The claim was that three Motorola engineers downloaded a treasure trove of materials from their work accounts before hopping over to Hytera in 2008. Motorola was not amused, and sued in both the US and Australia, claiming copyright infringement, trade secret theft, and that it’s just not cricket.

Here’s how it unfolded:

Year Event
2007–2008 Three Motorola engineers leave, allegedly taking source code and confidential documents.
2010s Hytera launches eerily similar digital mobile radios (DMRs) into the market.
2017 Motorola sues Hytera in the US (for trade secret theft and copyright infringement).
2020 A US jury awards Motorola nearly US$765 million.
2024 The US Seventh Circuit Court of Appeals cuts down the damages, ruling copyright law doesn’t stretch to overseas sales.
2022–2024 In Australian proceedings, Motorola wins a Federal Court case finding substantial copying of its software and some patent infringements.

In Australia (Hytera Communications Corporation Ltd v Motorola Solutions Inc [2024] FCAFC 168), the Federal Court was having none of Hytera’s various arguments. It found that Hytera’s software infringed Motorola’s copyrights in six major works and awarded Motorola remedies accordingly. One of Motorola’s patents was also found infringed — though another was knocked out for invalidity.

So, why does this matter for copyright and software?

First up: software source code is absolutely protected by copyright.  Nothing has changed there.

It doesn’t matter if the copying happened sneakily, through engineers quietly/brazenly exporting files out the back door. If your new product looks suspiciously like the old employer’s, and the code similarities are undeniable, you’re probably in trouble.

It’s a breach of copyright in a copyright work to copy all or a substantial part of the copyright work without permission.  What this case does is clarify what “substantial part” means when it comes to software.

Generally, in copyright, the test for whether the copied bit was a “substantial part” of the copyright work is a “qualitative test” – that is, it’s about quality, not quantity.

In a music context, cases such as the famous “Men At Work” case (EMI Songs v Larrikin Music) taught us that it’s how important the copied musical passage was to the whole work and not how lengthy it was (that quirky flute part in “Land Down Under” was held to be a reproduction of an important, but short, part of the melody in “Kookaburra Sits in the Old Gum Tree”).

The Court in that case said substantiality depends mainly on the importance or distinctiveness of the part copied in relation to the original work — even a small musical phrase, if distinctive, could be substantial.

In Hytera, though, the Court made an important distinction.  When it comes to software, it’s not about how functionally important the copied code is. You could copy a piece of code that barely moves the dial commercially — and still infringe. The real test is whether the copied part contains the original intellectual effort and creative expression of the coder.

It’s a subtle shift from cases like Men at Work, where the Court focused on whether the snippet (a melody, in that case) was distinctive or significant to the work overall.

In software land, copyright doesn’t care how useful the copied bit is — it only cares if it was original.

The Court in Hytera, though, was careful when discussing “intellectual effort” not to revert entirely back to the old “sweat of the brow” arguments.

In the old Desktop Marketing Systems v Telstra case (early Federal Court levels) it was held that just collecting and compiling basic data was enough for copyright to apply, because it involved effort to compile it all together – that is, it involved “sweat of the brow.”

But then IceTV v Nine (2009) came along, in which the High Court said No — effort alone is not enough.  It was held that copyright protects original expression — meaning something resulting from independent intellectual effort and some creative choice, not just labour.

In Hytera, the Court was very careful not to slip all the way back into pure “sweat of the brow” thinking – the Court didn’t say that simply writing code or working hard gave rise to copyright protection.  Instead, they said:

  • The copied source code was protected because it reflected original intellectual effort and creative choices — not just functional output.

  • You still need some degree of creative expression — but in software, that creativity can sit in how the code is written, how problems are solved, and the structure of the program — not necessarily in the “importance” of the function itself.

In other words:

  • Not just “I worked hard, therefore copyright.”

  • But “I made creative and original choices, therefore copyright — even if the code serves a functional purpose.”

Copyright Lessons from Hytera

  • Don’t steal code. Seriously. Just don’t – it leaves digital fingerprints everywhere.

  • Copyright protects software structure and content, not just fancy graphics or user interfaces.

  • Judges don’t love “but we changed it a bit” arguments when the starting point was a pile of stolen files.

High Court Appeal?

In early April, Hytera applied to the High Court for special leave to appeal, but in an extra blow to Hytera’s already deflated spirits, the High Court refused to grant leave as their appeal “does not enjoy sufficient prospects of success to warrant the grant of special leave”.  Ouch …

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How Not to Avoid Copyright Breach

In a podcast earlier this month, pop star Ed Sheeran said that recent copyright disputes have changed how he makes music.

While he has been involved in several copyright disputes where someone has accused him of plagiarising/copying their original music, he says that he has never lost any such claim since 2017, and he puts it down to the fact that he records all of his writing/jam/practice sessions now.

The theory is that if he records the sessions, he has recorded evidence that any music that comes out of the sessions he made up himself and wasn’t a copy of anyone else’s music.

Erm … sorry, Ed – that’s like videoing a road you cross every day to avoid getting hit by a car.  You can still get hit, but now it’ll be on video.

Even if you don’t consciously copy someone else’s music during a session, that doesn’t mean that you haven’t actually done so.  All you’re doing is recording the moment you incorporated their music into something you play during a session.

You see, you can innocently infringe someone else’s copyright.  Any writer/composer will tell you that new music they create, whether in a jam session or otherwise, is always inspired by something – sometimes events, sometimes emotions, and sometimes by music heard recently.  If your music is inspired in part by music you heard recently, it’s not a big jump from there to being in breach of copyright.

The legal test is not a subjective one about whether you intentionally copied someone’s music – the test is an objective one involving what a reasonable person would conclude after considering your music, the other music, the various components of each and whether you had the opportunity to copy the other music (for example, is there evidence that you had previously heard the other music?).

This is not a criticism against recording your practice sessions – that’s always a good thing (especially when something catchy comes out of it – you don’t have the problem then to try to remember later what you played) … but it is not a good way to avoid breach of copyright – it’s simply a way to record it.

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A Less than Merry Pair of Perrys

It was Firework vs Fabric in the High Court recently when famous singer Katy Perry (real name Katherine Hudson) battled it out with clothes designer Katie Taylor over Ms Taylor’s registration of the trade mark “Katie Perry”.

It’s taken a while for this fight to get going, though – it all started back in 2008 when Ms Taylor (whose birth name was in fact “Katie Perry”) lodged a trade mark application to protect that name as her proposed clothing label.

By that stage, Katy Perry the singer was well-known but did not have a reputation in Australia in respect of clothing, so Ms Taylor was able to register the mark.

The timeline is interesting:

Timeline: Katie Perry vs Katy Perry

Year Event
September 2008 Katie Taylor lodges the Australian trade mark application for “Katie Perry” (for clothing).
Late 2008 Katy Perry (the singer) becomes internationally famous with her hit songs (“I Kissed a Girl”, etc.), but had not yet started selling clothes or merchandise in Australia under her stage name.
2009–2010 Katy Perry begins launching more merchandise globally (including clothing lines), but after Ms Taylor’s trademark filing date.
2010 Ms Taylor’s “Katie Perry” trade mark is officially registered in Australia.
Early 2010s Katy Perry’s brand and merchandising activity (including clothing sales) expands significantly, including in Australia.
2019 Katy Perry’s companies apply to cancel Ms Taylor’s “Katie Perry” trade mark in Australia (leading to the later court battles).

You can see both sides … Ms Taylor says she is just using her own birth name and not in the entertainment industry, while Ms Hudson (the singer) says Ms Taylor has done the equivalent of a guy named John Pope registering PopeMobile as a trade mark and starting up a car yard in Vatican City.

Unsurprisingly, Ms Hudson tried to knock out Ms Taylor’s “Katie Perry” trade mark. There are various reasons you can do that, and the Roar singer’s reasons included that:

  • The trade mark caused confusion with her own “Katy Perry” trade mark in which she had a real reputation (under s60 of the Trade Marks Act 1995 (TMA))
  • Ms Taylor’s use of her “Katie Perry” mark was likely to cause confusion (under s88(2)(c) of the TMA)

The trial judge in the Federal Court wasn’t having it.  In his view, singer Katy Perry did not have a reputation in Australia for the sale of clothing, there was no real likelihood of confusion occurring, and he exercised his discretion (under s89 of the TMA) not to cancel Ms Taylor’s mark since she has adopted and used it innocently.

The Full Federal Court, though, were on Team Hudson on appeal, reversing the first decision and ordering cancellation of Ms Taylor’s mark because, in their view:

  • Katy Perry’s reputation at the priority date was strong enough (even in name alone) to cause likely confusion (s60 again)
  • Even though she wasn’t yet selling clothes in Australia at the priority date, it was common practice for pop stars to sell clothing and merchandise, so confusion was likely
  • Ms Taylor’s use, even if limited, was likely to cause confusion in the future
  • The trial judge was wrong to use his discretion under s89 because Ms Taylor’s act of applying to register her mark (while knowing of Katy Perry’s fame) contributed to the confusion.

So, off we go to the High Court.  The first hurdle was to get the High Court to grant “special leave” to appeal the Full Court’s decision (you have to ask for that leave because, unlike when you go from a trial judge to a Full Court on appeal, you are not automatically entitled to appeal to the High Court just because you didn’t like the Full Court’s decision).

Ms Taylor’s lawyers argued on the special leave application that the Full Court got it wrong because:

  • The “likely confusion due to reputation” argument (under s60) only applies if the person has a specific reputation in relation to that trade mark for the relevant services, and Katy Perry the singer was not known at that time for her clothing sales – so the Full Court blurred her general fame with the requirement for a trademark-specific reputation
  • The likelihood of confusion at a later date argument (under s88(2)(c)) focused improperly on the singer’s potential future use of her mark (that is, on the basis that one day she might sell clothes) rather than her actual use (which did not originally involve that at all)
  • Filing a trade mark application like Ms Taylor did is not an “act” causing confusion that might prevent the trial Judge from exercising his discretion under s89 to cut Ms Taylor some slack.

The singer’s lawyers got a bit more technical but, essentially, argued that all of the above is really interesting but complete rubbish.

The High Court granted special leave and arguments begin in the High Court in early May … watch this space!