Craftworks - whether "artistic works" - whether "sculptures" - whether "works of artistic craftsmanship" - whether "original" - use of general lead lighting techniques to represent well known animals.

Wham-O MFG Co v Lincoln Industries Ltd [1984] 1 NZLR 641, distinguished
Hensher v Restawile Upholstery [1976] AC 64, considered
Designers Guild Ltd v Russell Williams (Textiles) Ltd [2001] 1 All ER 700, considered
Roland Corporation v Lorenzo and Sons Pty Ltd (1991) 33 FCR 111, considered

INTELLECTUAL PROPERTY - PASSING OFF -

Absence of misrepresentation - goods labelled with name of maker - sufficient in circumstances to dispel connection with the other's products.

Montgomery v Thompson [1891] AC 217, distinguished
United Pacific Industries Pty Ltd v Madison Sports Pty Ltd (1998) 41 IPR 546, distinguished

REPRESENTATION:

Counsel:
Appellant: Professor E P Aughterson
Respondent: Self-represented

Solicitors:
Appellant: De Silva Hebron
Respondent: -

Judgment category classification: B
Judgment ID Number: ang200403
Number of pages: 18

ang200403
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Wildash v Klein [2004] NTSC 17
No. 132 of 2001 (20111030)

BETWEEN:

DEBORAH ANN BATHURST WILDASH
Plaintiff

AND:

COLEEN MARY KLEIN
Defendant

CORAM: ANGEL J

REASONS FOR JUDGMENT

(Delivered 6 April 2004)

[1] The plaintiff and the defendant used to be friends. Each creates craft work by hand. Each claims copyright in the products of her handicraft. Each claims the other has infringed that copyright and has passed off her own goods as that of the other. The plaintiff claims and the defendant counter-claims damages for breach of copyright and for passing off.
[2] The plaintiff has set out in her Statement of Claim filed 23 July 2001 and her answers to a request for further and better particulars filed 17 September 2001 the craftworks for which she claims to be the original creator and holder of copyright, as follows:
A. "critters" being Territorian animals, reptiles or insects made by utilising a solder process.

(i) Wire outline:
(a) Gecko
(b) Frog
(c) Frill neck lizard

(ii) Solid 3-dimensional form:
(a) Gecko
(b) Frog
(c) Frill neck lizard

1. Open woven frill
2. Sheet copper frill
3. Solid solder frill

(d) Dragonfly:
1. Stranded Soldered wings
2. Stranded wings
3. Beaded wings

(e) Green ant
(f) Spider
(g) Centipede
(h) Scorpion
(i) Mozzie

B. "flyscreen critters" which are critters designed to hang on household flyscreens.

C. "magic wand", a glass rod with crystal mounted on the top, wire wrapped with bead work.

D. "table mossie coil holders", which is a copper foiled glass circle comprising…

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 Wildash v Klein

Details

AGLC: Wildash v Klein [2004] NTSC 017
Case: [2004] NTSC 17
Decision Date: 06/04/2004

CaseChat Overview and Summary

Deborah Ann Bathurst Wildash initiated legal proceedings against Coleen Mary Klein, asserting claims for breach of copyright and passing off in relation to handcrafted craftworks. The primary issue for determination by the Supreme Court of the Northern Territory was whether copyright subsisted in the craftworks in question, specifically whether they qualified as "artistic works" as defined in the Copyright Act 1968 (Cth), and if either party had infringed the other's copyright. Additionally, the court had to consider whether either party had misrepresented the other's craftworks as their own, thereby passing them off as such.

The court began by examining whether the craftworks in question qualified as "artistic works" and were original, thereby attracting copyright protection. It concluded that the craftworks constituted sculptures or works of artistic craftsmanship, given their three-dimensional form and the skill and craftsmanship involved in their creation. However, the court found that the originality required for copyright protection was limited due to the commonality of the medium and subject matter, which involved hand-crafted representations of well-known Northern Territory animals using lead lighting techniques. The court determined that while the craftworks were unique, the originality and, therefore, the copyright protection were confined to the aesthetic quality beyond the commonplace elements.

Regarding the infringement of copyright, the court held that while some similarities existed between the craftworks of the plaintiff and the defendant, these were attributable to the shared medium and subject matter rather than copying. In only three instances did the court find any suggestion of copying, but even in these cases, the copying did not constitute a substantial part of the copyright work. The court concluded that neither party had infringed the other's copyright.

In relation to the passing off claims, the court found that neither party had misrepresented the other's craftworks as their own, as both parties had labelled their wares correctly, indicating the true origin. This labelling was sufficient to dispel any confusion or misrepresentation, and thus, the claims and counter-claims for passing off were dismissed.

Ultimately, the court dismissed all claims and counter-claims brought by both parties, with no order as to costs.

Orders