GEORGE MILPURRURRU, BANDUK MARIKA, TIM PAYUNKA and THE PUBLIC TRUSTEE FOR THE NORTHERN TERRITORY v. INDOFURN PTY LTD, BRIAN ALEXANDER BETHUNE, GEORGE RAYMOND KING AND ROBERT JAMES RYLANDS No. DG4 of 1993 FED No. 975/94 Number of pages - 42 Copyright (1994) 54 FCR 240
IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY VON DOUSSA J
CATCHWORDS
Copyright - Aboriginal paintings - artwork or parts thereof reproduced on Vietnamese made woollen carpets - importation into Australia for sale - copyright ownership - whether reproduction of a substantial part of the artwork - whether importer knew or ought reasonably to have known that the making of the carpets, if made in Australia, would have constituted infringing copies - whether directors personally liable for infringements by company - misleading and deceptive conduct - order for delivery up - assessment of conversion damages - assessment of compensatory damages for depreciation of value of copyright - additional damages - flagrancy - relevance of Aboriginal law and custom and notions of collective ownership by traditional owners.
DARWIN, PERTH, 25-29 July 1994, 22 November to 1 December 1994 #DATE 13:12:1994, ADELAIDE #ADD 17:3:1995
Counsel for the applicants: Mr C Golvan
Solicitor for the applicants: North Australian
Aboriginal Legal Aid Service Ltd
Counsel for the respondents: Mr G Clayton
Solicitor for the respondents: Ward Keller as agents
for Unmack and Unmack
ORDER
THE COURT ORDERS THAT: 1. That the applicants bring into Court minutes of order reflecting
the reasons for judgment published this day.
That the matter be relisted to consider costs and the minutes of
order in Adelaide (with video link to Perth) at 12.00 noon Central Standard Time on 15 December 1994.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court
JUDGE1
VON DOUSSA J This is a claim for remedies under the Copyright Act 1968 (Cth) for copyright infringement and under the Trade Practices Act (Cth) for alleged contraventions of ss.52, 53(c) and (d) and 55.
The first three applicants are Aboriginal artists. The fourth applicant, the Public Trustee, represents the estates of five deceased Aboriginal artists. The skill of each of the artists is recognised nationally and internationally as exceptional; their works are represented in national, State and other major collections of Australian artworks. The pleadings allege that since about October 1992 the respondents have manufactured, imported into Australia, offered for sale and sold woollen carpets which reproduce artwork, or substantial parts thereof, of each of the artists without the licence of the owners of the copyright.
In accordance with Aboriginal custom, and out of respect for the deceased artists, their names have not been spoken in the course of the trial. They have been referred to throughout by their appropriate skin names. It is however necessary to…
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.
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Details
AGLC
Milpurrurru, G. & Ors v. Indofurn P/L & Ors [1994] FCA 975 ((1994) 54 FCR 240; (1994) 130 ALR 659)
Case
[1994] FCA 975
Decision Date
CaseChat Overview and Summary
The case of Milpurrurru v Indofurn Pty Ltd involved several Aboriginal artists who were plaintiffs and Indofurn Pty Ltd, an Australian company, which was the defendant. The dispute centred around the copyright infringement and misleading and deceptive conduct related to the reproduction of Aboriginal artwork on woollen carpets. The plaintiffs alleged that the carpets, imported from Vietnam, featured reproductions of their artworks without permission, thereby infringing their copyright and misleading consumers about the origin and authenticity of the goods. This case was heard in the Federal Court of Australia, which had the jurisdiction to adjudicate on matters involving intellectual property and trade practices.
The central legal issues that the court had to resolve included whether the reproduction of the artwork on the carpets constituted a substantial part of the original work, thereby infringing the plaintiffs' copyright. Additionally, the court had to determine whether the company and its directors knew or should reasonably have known that the carpets constituted infringing copies. Another issue was whether the directors were personally liable for the infringements committed by the company. The court also needed to decide on the appropriate remedies, including whether an order for delivery up of the infringing goods was warranted, and the assessment of various damages, including conversion damages, compensatory damages for depreciation of value, and additional damages for the flagrancy of the infringement.
In reaching its decision, the court found that the reproductions on the carpets did indeed constitute a substantial part of the original artworks, thus constituting copyright infringement. The court also held that the company and its directors were liable for the infringements. The plaintiffs were awarded damages for conversion, depreciation of the copyright's value, and additional damages for the flagrancy of the infringement. The court emphasised that the Aboriginal law and customs, including notions of collective ownership by traditional owners, were relevant in assessing the gravity of the infringement and the appropriate remedies. The court ordered the delivery up of the infringing goods and scheduled a further hearing to consider the costs and to finalise the orders.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. That the applicants bring into Court minutes of order reflecting
the reasons for judgment published this day.
2.
That the matter be relisted to consider costs and the minutes of
order in Adelaide (with video link to Perth) at 12.00 noon Central Standard Time on 15 December 1994.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court