Burge v Swarbrick - [2005] FCAFC 257

FEDERAL COURT OF AUSTRALIA
Burge v Swarbrick [2005] FCAFC 257
COPYRIGHT – whether copyright subsists in the plugs, moulds and actual hull and deck of a yacht – whether respondent designer of yacht owns that copyright– interpretation of the definition of ‘artistic work’ –meaning of the term ‘work of artistic craftsmanship’ – whether a sculpture can be a work of artistic craftsmanship within the meaning of that term – whether plug, moulds or yacht were sculptures and/or works of artistic craftsmanship
Copyright Act 1911 (UK) s22
Copyright Act 1912 (Cth)
Copyright Act 1968 (Cth) ss 10, 31, 36, 74, 77, 116
Copyright Amendment Act 1989 (Cth)
Designs Act 1906 (Cth)
Fine Arts Copyright Act 1862 (UK)
Hensher v Restawile Upholstery [1976] AC 65 referred to
Report of the Committee on the Law of Copyright 1909
BRENT BURGE & ORS v JOHN HARLEY SWARBRICK
W150 OF 2004
MOORE, NORTH AND EMMETT JJ
8 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

W150 OF 2004

BETWEEN:

BRENT BURGE
FIRST APPELLANT

TREVOR ROGERS
SECOND APPELLANT

BENJAMIN WARREN
THIRD APPELLANT

BOLDGOLD INVESTMENTS PTY LTD (ACN 105 065 272)
FOURTH APPELLANT

GLEN PETER BOSMAN
FIFTH APPELLANT

SERGIO EDWARD ZAZA
SIXTH APPELLANT

AND:

JOHN HARLEY SWARBRICK
RESPONDENT

JUDGES:

MOORE, NORTH AND EMMETT JJ

DATE OF ORDER:

8 DECEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeal be allowed in part.
2.Order 1 made on 24 June 2004 be set aside and the following order be substituted in lieu of that order:
Copyright subsists in, and the applicant is and has been (since the dates variously referred to below) the owner of and entitled to the copyright in each of the items described in paragraph 1 of the application, being the Plug, the Hull Mould and the Deck Mould, the Hull Moulding and the Deck Moulding (all since approximately 2001) and the Drawings (since their creation at various dates between 2001 and about March 2002) as those items are defined in the reasons for judgment published on 24 June 2004 (‘the Artistic Works’).

3.The appellants pay the respondent’s costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

I N THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

W150 OF 2004

BETWEEN:

BRENT BURGE
FIRST APPELLANT

TREVOR ROGERS
SECOND APPELLANT

BENJAMIN WARREN
THIRD APPELLANT

BOLDGOLD INVESTMENTS PTY LTD (ACN 105 065 272)
FOURTH APPELLANT

GLEN PETER BOSMAN
FIFTH APPELLANT

SERGIO EDWARD ZAZA
SIXTH APPELLANT

AND:

JOHN HARLEY SWARBRICK
RESPONDENT

JUDGES:

MOORE, NORTH AND EMMETT JJ

DATE:

8 DECEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT
INTRODUCTION
STATUTORY FRAMEWORK
PRODUCTION OF THE BATEAU ROUGE
INFRINGEMENT
THE CONCLUSIONS OF THE PRIMARY JUDGE
ISSUES ON THE APPEAL
THE CONSTRUCTION OF SECTION 77(1)(a)
WORK OF ARTISTIC CRAFTSMANSHIP
CORRESPONDING DESIGN
CONCLUSION
INTRODUCTION

The respondent, John Harley Swarbrick (‘the Designer’), is a naval architect. He has designed a yacht known as a JS 9000. The first yacht…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burge v Swarbrick

Details

AGLC: Burge v Swarbrick [2005] FCAFC 257
Case: [2005] FCAFC 257
Decision Date: 8 DECEMBER 2005

CaseChat Overview and Summary

In the matter of Burge v Swarbrick, the court was tasked with determining the copyright ownership of certain elements of a yacht design. The Designer, who had created the yacht, claimed copyright over various works related to the design and construction of the yacht. The Designer had conceded that if a corresponding design existed within the scope of s 77 of the Act, it had been applied industrially. The court was required to ascertain whether the works in question constituted artistic works of craftsmanship and whether copyright subsisted in them.

The court considered the Designer's intention to create a yacht with significant aesthetic appeal, as well as the high level of skill and craftsmanship exhibited in the creation of the plugs, which were used as templates for the yacht's hull and deck. The court found that the Designer's work on the plugs involved a creative design effort by skilled workers and demonstrated a high level of skill, planning, ingenuity, and dexterity. The Designer's expertise in both naval architecture and shipwrighting further supported the finding that the plugs were artistic works of craftsmanship. The court also noted that the aesthetic and technical aspects of yacht design were not mutually exclusive and that the plugs had sufficient aesthetic value to be regarded as artistic.

Based on the evidence presented, including photographs, a view of the yacht, and expert opinion, the court concluded that the plugs, hull, and deck of the Bateau Rouge were artistic works of craftsmanship. Consequently, copyright subsisted in these works, and the Designer was entitled to the copyright. The appeal was allowed in part, and the orders were varied to reflect the court's findings. The Designer was recognised as the owner of the copyright in the specified items, and the appellants were ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed in part.

2. Order 1 made on 24 June 2004 be set aside and the following order be substituted in lieu of that order:

Copyright subsists in, and the applicant is and has been (since the dates variously referred to below) the owner of and entitled to the copyright in each of the items described in paragraph 1 of the application, being the Plug, the Hull Mould and the Deck Mould, the Hull Moulding and the Deck Moulding (all since approximately 2001) and the Drawings (since their creation at various dates between 2001 and about March 2002) as those items are defined in the reasons for judgment published on 24 June 2004 (‘the Artistic Works’).

3. The appellants pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MOORE, NORTH AND EMMETT JJ

The Designer conceded, for the purposes of the proceeding, that, if there is a corresponding design within the meaning of s 77 of the Act of the various works in respect of which he claims copyright, then that corresponding design has been applied industrially. THE CONCLUSIONS OF THE PRIMARY JUDGE The primary judge found that the Designer intended to design and build a yacht that had great aesthetic appeal and that the Bateau Rouge had a high level of aesthetic appeal; that was the outcome that the Designer intended. The plugs involved a creative design effort by workers skilled in handicraft and the Designer exhibited a very high level of skill. His Honour also found that the Designer had special training, skill and knowledge in both the design skills of a naval architect and the design and manual skills of an experienced shipwright. His Honour considered that the Designer’s work on the plugs, comprising skill in planning and construction, ingenuity and dexterity, was craftsmanship. The Designer applied much of his special training, skill and knowledge when he produced the plugs, which were a manifestation of pride and sound workmanship and the result of the exercise of skill on the part of the Designer in using the wood and materials from which the plugs was made. The primary judge accepted that there is a substantial body of opinion, expressed in publications in the field of yacht design and construction, that yacht designing, includes both aesthetic and technical aspects. His Honour considered that that material supports the proposition that there is no antithesis between function and beauty in relation to yacht design and construction. His Honour concluded that the plugs had the requisite aesthetic quality to be described properly as artistic. His Honour considered that the level of aesthetic appeal of the plugs is more than a mere visual appeal and concluded that the plugs had sufficient aesthetic value to be regarded as artistic in the relevant sense. Since the hull and deck of Bateau Rouge were reproductions of the precise shape of the plugs, it follows that the primary judge also found that that hull and deck had sufficient aesthetic value to be regarded as artistic in the same sense. In reaching his conclusions, the primary judge had regard to photographs of the plugs and their shape as reflected in the hull and deck of the Bateau Rouge. His Honour also conducted a view, during which he observed the hull and deck of the Bateau Rouge and a photographic record was made of what his Honour observed in three-dimensional form during that view. In the light of that evidence, and the Designer’s intention to create a work of considerable aesthetic value, the primary judge concluded that the plug is of sufficient aesthetic value to be of artistic quality and, therefore, to be a work of artistic craftsmanship. His Honour therefore concluded, relevantly, that the hull and deck of the Bateau Rouge were each works of artistic craftsmanship within the meaning of that term when used in s 77(1)(a) of the Act.

Ratio Decidendi

Legal Principle Established

Established by: MOORE, NORTH AND EMMETT JJ

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	W150 OF 2004

BETWEEN:	BRENT BURGE FIRST APPELLANT TREVOR ROGERS SECOND APPELLANT BENJAMIN WARREN THIRD APPELLANT BOLDGOLD INVESTMENTS PTY LTD (ACN 105 065 272) FOURTH APPELLANT GLEN PETER BOSMAN FIFTH APPELLANT SERGIO EDWARD ZAZA SIXTH APPELLANT
AND:	JOHN HARLEY SWARBRICK RESPONDENT
JUDGES:	MOORE, NORTH AND EMMETT JJ
DATE OF ORDER:	8 DECEMBER 2005
WHERE MADE:	SYDNEY

I N THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	W150 OF 2004

JUDGES:	MOORE, NORTH AND EMMETT JJ
DATE:	8 DECEMBER 2005
PLACE:	SYDNEY