Thomas, Harold Joseph v Brown, David George - [1997] FCA 215

CATCHWORDS

COPYRIGHT - copyright in design of Aboriginal flag - application for declarations that applicant owner of copyright therein - claims by two other persons to have designed flag - analysis of complex of evidence - question of fact - no question of law or principle - discussion of copyright/design overlap - no submission applicant disentitled to relief by reason of provisions of Division 8 of Part III of Copyright Act 1968.

Copyright Act 1968; ss.74, 75, 77
Designs Act 1906
Flags Act 1953; ss.3, 4, 5

HAROLD JOSEPH THOMAS v DAVID GEORGE BROWN AND JAMES MORRISON VALLELY TENNANT
No. SG 62 of 1996

CORAM:    SHEPPARD J
PLACE:    ADELAIDE (JUDGMENT DELIVERED IN SYDNEY)
DATE:        9 APRIL 1997

IN THE FEDERAL COURT OF AUSTRALIA )
  )    No. SG 62 of 1996
SOUTH AUSTRALIA DISTRICT REGISTRY )
  )
GENERAL DIVISION                 )

BETWEEN: HAROLD JOSEPH THOMAS
Applicant

AND: DAVID GEORGE BROWN
First Respondent

AND:JAMES MORRISON VALLELY TENNANT
Second Respondent

MINUTES OF ORDER

CORAM: SHEPPARD J
PLACE: ADELAIDE (JUDGMENT DELIVERED IN SYDNEY)

DATE: 9 APRIL 1997

THE COURT ORDERS THAT:

It be declared that:
(a)Harold Joseph Thomas is the author of the artistic work being the design for the flag described in Schedule 1 to the proclamation dated 27 June 1995 under s.5 of the Flags Act 1953 and published in the Commonwealth of Australia Gazette No. S259 of 14 July 1995, such flag being known as “the Aboriginal flag” (“the artistic work”); and

(b)Harold Joseph Thomas is the owner of the copyright subsisting in the said artistic work.

Leave be reserved to the applicant to make application for the further relief sought in his amended application filed on 1 August 1996 provided that any such application is made on or before 23 April 1997. Such application may be made by notifying it to the associate to Sheppard J and to the respondents to the application on or before 23 April 1997.

There be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA )
  )    No. SG 62 of 1996
SOUTH AUSTRALIA DISTRICT REGISTRY )
  )
GENERAL DIVISION                 )

BETWEEN: HAROLD JOSEPH THOMAS
Applicant

AND: DAVID GEORGE BROWN
First Respondent

AND:JAMES MORRISON VALLELY TENNANT
Second Respondent

CORAM: SHEPPARD J

PLACE: ADELAIDE (JUDGMENT DELIVERED IN SYDNEY)

DATE: 9 APRIL 1997

REASONS FOR JUDGMENT

HIS HONOUR: This application concerns the ownership of the copyright in the design of a flag. The flag is well known. It is referred to throughout the community as the Aboriginal flag. The flag is divided into two sections. The upper half is black and the lower half is red. In the centre of the flag is a large yellow circle which, in present representations of the flag, has half its area in the black upper part of the flag and the other half in the red lower part of it. A representation of the…

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

Case: [1997] FCA 215
Decision Date: 9 APRIL 1997

CaseChat Overview and Summary

Harold Joseph Thomas, the applicant, brought an application seeking declarations to the effect that he is the author of the artistic work being the design for the flag described in Schedule 1 to the proclamation dated 27 June 1995 under s.5 of the Flags Act 1953 and published in the Commonwealth of Australia Gazette No. S259 of 14 July 1995, such flag being known as "the Aboriginal flag" ("the artistic work") and that he is the owner of the copyright subsisting in the said artistic work. The application was brought against the two respondents, David George Brown and James Morrison Vallely Tennant. The respondents did not bring cross-claims seeking any relief themselves. The respondents' resistance to the declarations which Mr Thomas sought was defensive. The principal relief which Mr Thomas claimed was a declaration to the effect that he is the author of the artistic work being the design for the flag described in a schedule to a proclamation dated 27 June 1995 under s.5 of the Flags Act 1953 published in the Commonwealth of Australia Gazette of 14 July 1995. Mr Thomas also claimed a declaration that he is the owner of the copyright subsisting in the artistic work which is comprised in the flag. The evidence in the matter consists of the evidence of the witnesses called at the hearings in July and December and of a large number of exhibits. The evidence called in Mr Thomas’s case, and also that called in Mr Brown’s case, establishes to my satisfaction that the Aboriginal flag originated in Adelaide. That is the overall effect of the evidence called in Mr Thomas’s case. It will in due course be seen that it is also the effect of much of the evidence called in Mr Brown’s case. The evidence in Mr Thomas’s case fixes the year as 1971. That called in Mr Brown’s case puts the year variously as 1967, 1971 or 1972 or even later. Whatever the year, Adelaide, not Canberra, was the place of origin of the design. Mr Tennant was unable to call any corroborating evidence in his case. This is understandable in view of the passing of so many years. No comment adverse to Mr Tennant’s case based on the absence of such evidence could properly have been made. But it is not the absence of any such evidence which has led me to say what I have about Mr Tennant’s case. It is the inherent improbability of his evidence which is the problem. I have reached the conclusion that his case has no substance. The ultimate question is whether I accept or reject Mr Thomas’s case. He is the only party who seeks relief. That does not mean that it is not important to consider whether Mr Brown’s case should be accepted. Its acceptance would automatically lead to the rejection of Mr Thomas’s case. That is what Mr Brown apparently wants, not so much for the sake of having Mr Thomas’s case rejected, but in order to achieve himself recognition as the designer of the flag. Mr Thomas’s case is so powerful that it outweighs Mr Rennie’s evidence which, in any event, as I have endeavoured to show, would not establish Mr Brown’s case for him because there is no support in it for Mr Thomas having taken the design from Mr Brown. Nor is any such evidence to be found elsewhere. Having reflected on the matter at some length and given the weight to a number of matters which I have indicated I have, I have come to the conclusion that I should accept Mr Thomas’s case and reject that of Mr Brown. That means that, subject to the next matter with which I deal concerning the copyright/designs overlap which exists in this case, Mr Thomas is entitled to succeed. The relief I propose to grant is limited to declarations to be made in the form of those sought in paras 1a and 1b of the application. I do not propose to grant any other relief at least without further argument. I have, however, reserved liberty to Mr Thomas to make such application as he may be advised for the relief sought in the balance of his amended application provided any such application is made within 14 days of today and notified to the other parties within that time. The application may be made by sending a copy of it to my associate. I make declarations in terms of paras 1a and 1b of the amended application. I reserve leave to Mr Thomas to make such application for the balance of the relief sought by him in his application provided any such application is notified to my associate and to the solicitors for Mr Brown and Mr Tennant on or before 23 April 1997.

Orders