Same Same But Different – How to Handle Clients Who Want You to Copy

Same Same But Different – How to Handle Clients Who Want You to Copy

“Learn the rules like a pro, so you can break them like an artist.” — Pablo Picasso

If you’re a surface designer, graphic designer, illustrator or artist, chances are you’ve had a client come to you with the following: “Can you make something like this?” or “Just something inspired by this pattern” or even “You know, something that brings this artwork to mind”.

While that quote might inspire confidence in your creativity, the reality is that the rules — especially legal ones — matter a lot more than many people think. The truth is, the line between “inspired by” and “infringing” is thin, blurry, and often drawn by a court long after the damage is done.

It might sound innocent — even flattering. But from a copyright lawyer’s perspective, this is the exact kind of situation that can land you in hot water.

Let’s unpack why.

The myth of the 10% rule

There’s a long-standing myth in the creative world that if you change someone else’s work by 10%, it’s no longer copyright infringement. This is simply not true. The “10% rule” is not recognised under Australian copyright law. The law doesn’t look at whether a work is 10%, 20%, or even 50% different. Instead, the key test is whether a substantial part of the original work has been copied.

And here’s the thing: “substantial” doesn’t mean a large chunk. It means an important, distinctive, or essential part. You could copy just the heart of a design — say, a striking floral motif or a unique layout — and still be infringing copyright.

Why it matters: The real-world Seafolly case

Let’s take a real-world example that sends a strong message to all creatives.

In the 2014 case of Seafolly Pty Ltd v Fewstone Pty Ltd (City Beach), the Federal Court found that City Beach had infringed Seafolly’s copyright in three artistic works. Seafolly had provided clear, original designs for its swimwear. City Beach then instructed its own designers to make prints and embroidery based on pictures and physical samples of Seafolly’s garments.

Emails surfaced where City Beach staff described the new design as a “Seafolly knock-off.” Internal objections from designers about the closeness of the copy were ignored. Even worse, City Beach had sent Seafolly swimwear samples to its manufacturers overseas, asking them to make products “as close as possible.”

The court found that City Beach had crossed the line from inspiration to copying — and imposed serious penalties. Seafolly was awarded over $250,000 in damages, and City Beach was also hit with an injunction banning future sales of the infringing garments.

City Beach had tried to argue that the rose print they copied was a common motif and not original. But the judge disagreed, finding that Seafolly’s expression of the traditional rose print had enough originality to be protected. The fact that City Beach’s garments were cheaper and targeted a different demographic didn’t matter. What mattered was the copying.

This case stands as a very real warning to artists, illustrators and designers alike: copying, even “just a bit,” can land you in legal and financial trouble — and even damage your reputation.

So what does copyright law actually protect?

Under the Copyright Act 1968 (Cth), original artistic works such as illustrations, surface designs, graphics and patterns are automatically protected as soon as they are created — there is no need for registration in Australia. The creator has the exclusive right to reproduce the work, communicate it to the public, and license or sell it.

If someone else reproduces a substantial part of that work without permission, it’s infringement — even if they didn’t know the work was protected or thought they had changed it enough.

Is it ever okay to be inspired by another artwork?

Yes — but tread carefully.

Being “inspired by” doesn’t mean copying the style, layout, or distinctive elements. It means drawing on a broader feeling, mood, or theme and creating something new that doesn’t closely resemble the original. Here’s where many creatives fall down — the line between inspiration and infringement is thinner than you might think.

If you’re working on a commercial commission, like a product design, packaging, or campaign artwork, you’re entering an area where the stakes are high. If your client intends to make money from the use of the work, the risk of being sued increases — and copyright defences like fair dealing (for research, study, or criticism) generally don’t apply.

As Herman Melville, the author of Moby-Dick and one of America’s greatest literary voices, once said: “It is better to fail in originality than to succeed in imitation. “It’s a reminder to all of us that truly original work, even when it’s challenging or risky, is always worth more than a diluted imitation.

What are your options if a client wants you to “copy”?

Ask questions.

• Where is the artwork from?
• Do they have permission to use it?
• Can they show a licence or consent from the original creator?

Use it as inspiration, not a blueprint. Look at general features like colour palettes or themes, not composition or details.

Create something fresh. Focus on original elements that reflect your style and don’t rely too closely on the reference.

Include terms in your contract. Make sure your terms state that you will not copy or reproduce third-party designs without permission — and that the client must provide proper references.

Seek legal advice. If you’re unsure, reach out. It’s cheaper to get advice now than defend a claim later.

Tips for creatives

• Don’t rely on the “10% rule” — it’s not real.
• Never assume Pinterest, Instagram or Google images are fair game.
• If you’re inspired by another artist, make sure your version looks like your own work, not a cousin of the original.
• Always keep records of your process and source materials.
• Use contracts that include warranties and indemnities that protect you — and limit your liability. We sell a great template through Cass Dellar’s website – https://www.cassdeller.com.au/
• Avoid using client-supplied samples without investigating their origin.

About Sharon Givoni Consulting

At Sharon Givoni Consulting, we help creatives turn their ideas into assets™.

We are copyright and commercial lawyers who understand how surface designers, illustrators, artists and graphic designers work — and we speak your language.

From drafting custom agreements to advising on infringement claims, we’re here to make sure your rights are protected and your business thrives.

Sharon Givoni Consulting helps turn your ideas into assets™ and help you sleep better at night.

Frequently Asked Questions (FAQs)

What if I use a reference image but change all the colours and shapes?
If the structure, composition or distinctive parts of the original are still recognisable, you may still be infringing copyright.

Can I use overseas designs if they’re not registered in Australia?
Yes — copyright is automatic and protected internationally under treaties. Registration is not needed for protection.

My client gave me a reference. Aren’t they liable?
Not necessarily. If you produce the artwork, you’re usually the one who’s seen as “making the copy” — and therefore responsible.

What if I’m creating a logo for a client who wants it to look like a famous brand?
This may raise not only copyright issues but also trade mark and consumer law risks. Seek legal advice.

What if two people have the same idea?
Copyright only protects the expression of an idea, not the idea itself. If you’ve created your work independently, you may have a defence — but the resemblance must be coincidental.

Can I use AI-generated art to “tweak” another work I found online?
If the base artwork is protected and you’re feeding it into an AI tool without a licence, that could still be copyright infringement.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.