FEDERAL COURT OF AUSTRALIA
Campbell v Zeiher [2009] FCA 423
Copyright Act 1968 (Cth)
Trade Practices Act 1974 (Cth)
Federal Court Rules O 5 r 11
Fair Trading Act 1987 (NSW)Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57
Prior v Sheldon (2000) FCA 438; 48 IPR 301
Seven Network (Operations) Ltd v TCN Channel Nine Pty Ltd (2005) 146 FCR 183GEOFFREY VINCENT CAMPBELL v FELICITY ZEIHER and RUKUS INDUSTRIES PTY LTD
NSD 344 of 2009
BUCHANAN J
28 APRIL 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 344 of 2009
BETWEEN: GEOFFREY VINCENT CAMPBELL
Applicant
AND: FELICITY ZEIHER
First RespondentRUKUS INDUSTRIES PTY LTD
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
28 APRIL 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Up to and including 11 May 2009 or further earlier order, the respondents and each of them, whether by themselves, their servants or agents or otherwise, be restrained from doing any of the following acts without the prior written consent of the applicant:
(a)publishing the literary work which is in, or is substantially in, the form of a book or book draft, and which is known to the respondents as “The Milperra Massacre – the True Story – through the eyes of Snake” (that literary work is hereafter referred to as the “Book”);
(b)publishing a substantial part of, or any adaptation of, the Book;
(c)communicating the Book to the public (whether by way of internet transmission or otherwise);
(d)communicating a substantial part of, or any adaptation of, the Book, to the public (whether by way of internet transmission or otherwise);
(e)publishing a substantial part of, or any adaptation of, the literary work embodied in the exercise books which are referred to in paragraphs 5 and 6 of the affidavit of Geoffrey Vincent Campbell sworn 22 April 2009 and parts of which are exhibited to that affidavit as Exhibit GVC-1 (that literary work is hereafter referred to as the “Underlying Notes”);
(f)publishing a substantial part of, or any adaptation of, the Underlying Notes; and
(g)communicating a substantial part of, or any adaptation of, the Underlying Notes to the public (whether by way of internet transmission or otherwise).
2.Up to and including 11 May 2009 or further earlier order, the respondents and each of them, whether by their servants, agents or otherwise be restrained from:
(a)making, without first obtaining the written approval of the applicant in relation to the contents of the Book (or any part, version or adaptation thereof), any express or implied representations in trade or commerce to the following effect:
(i)that the story in the Book (or any part, version, or adaptation thereof) is written from the perspective of the applicant;
(ii)that the Book or its contents (or any part, version, or adaptation thereof) is or are the story of the applicant;
(iii)that the Book or its contents (or any part, version or adaptation thereof)…
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- AGLC
- Campbell v Zeiher [2009] FCA 423
- Case
- [2009] FCA 423
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the respondents were infringing Campbell's copyright by publishing the book and whether they were falsely representing that the book was endorsed by or written from Campbell's perspective. The court needed to determine if the respondents had permission to use Campbell's notes and if the representations made about the book's authorship and endorsement were truthful or misleading.
The court found that Campbell's unpublished notes constituted literary work under the Copyright Act 1968, and the respondents had not obtained his consent to use these notes for the book. The court also determined that the representations made by the respondents were misleading, as they implied that Campbell endorsed the book and its contents, which he did not. The court granted the injunction, restraining the respondents from publishing the book, its substantial parts, or adaptations, and from making misleading representations about the book's authorship and endorsement. The court further ordered the respondents to produce the book for inspection and reserved costs for later determination. The proceedings were adjourned to allow further arguments on the matter.
Orders
Orders of the court
1. Up to and including 11 May 2009 or further earlier order, the respondents and each of them, whether by themselves, their servants or agents or otherwise, be restrained from doing any of the following acts without the prior written consent of the applicant:
(a) publishing the literary work which is in, or is substantially in, the form of a book or book draft, and which is known to the respondents as “The Milperra Massacre – the True Story – through the eyes of Snake” (that literary work is hereafter referred to as the “Book”);
(b) publishing a substantial part of, or any adaptation of, the Book;
(c) communicating the Book to the public (whether by way of internet transmission or otherwise);
(d) communicating a substantial part of, or any adaptation of, the Book, to the public (whether by way of internet transmission or otherwise);
(e) publishing a substantial part of, or any adaptation of, the literary work embodied in the exercise books which are referred to in paragraphs 5 and 6 of the affidavit of Geoffrey Vincent Campbell sworn 22 April 2009 and parts of which are exhibited to that affidavit as Exhibit GVC-1 (that literary work is hereafter referred to as the “Underlying Notes”);
(f) publishing a substantial part of, or any adaptation of, the Underlying Notes; and
(g) communicating a substantial part of, or any adaptation of, the Underlying Notes to the public (whether by way of internet transmission or otherwise).
2. Up to and including 11 May 2009 or further earlier order, the respondents and each of them, whether by their servants, agents or otherwise be restrained from:
(a) making, without first obtaining the written approval of the applicant in relation to the contents of the Book (or any part, version or adaptation thereof), any express or implied representations in trade or commerce to the following effect:
(i) that the story in the Book (or any part, version, or adaptation thereof) is written from the perspective of the applicant;
(ii) that the Book or its contents (or any part, version, or adaptation thereof) is or are the story of the applicant;
(iii) that the Book or its contents (or any part, version or adaptation thereof) is or are authorised or endorsed by the applicant.
(b) making any representation to the effect that the first respondent is the only author of the Book (or any part, version or adaptation thereof).
3. Pursuant to O 15 r 11 of the Federal Court Rules, on or before 5 May 2009, the respondents produce for inspection at the offices of the applicant’s solicitors the book which, as at 22 April 2009, was advertised on the website www.milperramassacre.com.au.
4. Liberty is reserved to the parties to apply on 12 hours notice.
5. In the absence of the first respondent, these orders may be served on the respondents by affixing them to the front door of Unit 1, 6-8 Francis Street, Cambridge Park.
6. Costs are reserved.
7. The proceedings are adjourned to 9.30 am on Monday, 11 May 2009 before Graham J.
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: BUCHANAN J
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