La leyenda de Quetzalcoatl. Diego Rivera. Palacio Nacional México D.F.

       
 


       por Dra. Teodora ZAMUDIO

  

in re Milpurrurru

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In the Federal Court of Australia Northern Territory District Registry

 

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 Copyright (1994) 54 FCR 240 (1994) 130 ALR 659

HRNG Von Doussa

Darwin, Perth, 25-29 July 1994, 22 November to 1 December 1994

#Date 13:12:1994, Adelaide

#Add 17:3:1995

 

Applicants

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 adequately identify the artworks in question to refer once in the judgment to these artists by name, but having done so the skin names will be used thereafter.  Particulars of the art works and the artists are as follows:

Artist 

Skin name     

Artwork

George Milpurrurru                    

 

Goose Egg Hunt

George Garrawun (died August 1993)    

Ngaritj

Freshwater Fish

Paddy Dhatangu (died 23 March 1993)                    

Gamarang

Wititj (olive python)

Fred Nanganaralil (died 28 August 1993)                

Wamut

Crow and Praying-mantis

Banduk Marika                         

 

Djanda and the Sacred Water Hole

Tim Leura Tjapaltjarri  (died 18 June 1984)

Tjapaltjarri

The Seven Sisters

Uta Uta Tjangala (died 8 December 1990)       

Jangala

Emu Dreaming

Tim Payunka Tjapangati                

 

Kangaroo and Shield & People Dreaming

                                            

The first four artists are from Central Arnhem Land.  The artworks in question are bark paintings.  The first three paintings are presently owned by the Australian National Gallery ("the ANG").  In 1993 in recognition of the International Year for the World's Indigenous People the ANG held the first solo exhibition of the works of an Aboriginal artist.  The exhibition was a retrospective look at the works of Mr Milpurrurru, and included the Goose Egg Hunt which is also featured in the publication "The Art of George Milpurrurru" which was published by the ANG at the same time.  As part of the program for the 1993 International Year for the World's Indigenous People, Goose Egg Hunt was adopted as the design for the 85 cents Australian stamp issued on 4 February 1993.  A large number of these stamps were put into circulation, perhaps as many as two to three million.

Freshwater Fish is recognised as one of the major works of Ngaritj, and was one of two paintings hung in the foyer of the ANG when it was opened by Her Majesty the Queen. The first three paintings, together with the work of Ms Marika were included in a portfolio of 12 Aboriginal artworks which was published by the ANG in 1988 under the auspices of the ANG's Education staff.  One of the purposes of the portfolio was to provide a resource item for teachers and students.  The portfolio was intended to be representative of the best Aboriginal artworks in the ANG collection. The artwork of Wamut is in the National Museum of Australia collection, and was reproduced in a portfolio of Aboriginal art published for the Australian Information Service ("AIS") by the Australian Government Printer.  It was also reproduced in a calendar for the month of June 1982 similarly published for the AIS.

Ms Marika's work is a six colour lino cut, ink on paper, that was created by her on a special commission for the Australian National University for the Bicentenary.  Her father is recognised as a great bark painter whose work is also in the ANG.  She was the first Aboriginal person appointed to the Board of the ANG.  More recently she has been appointed to the Board of the Northern Territory Museum and Art Gallery.  She is and was at the time of the events the subject of these proceedings heavily involved in community groups mainly as a consultant for arts related cross-cultural exchange, and as an educator in Aboriginal culture.

The remaining three artists are from the western desert areas of Central Australia.  The artworks are "Papunya" style paintings in acrylic paint on canvas.  Each work is recognised as one of the major works of a very important artist.  The works have been exhibited nationally and internationally and have also been reproduced in a portfolio of Aboriginal Art by the AIS, and in a calendar produced by that body for the months of January, March and November of 1986.

The facts

In both the ANG portfolio, and the AIS publications the reproduction of the artworks were published over the name of the artist. Amongst the carpets the subject of this action seven of the eight artworks were reproduced in virtually identical form and colour.  It is common ground that the source of the artwork reproduced was these publications.

The reproduction of the artworks in the ANG and AIS portfolios, and on the postage stamp followed formal approval and royalty agreements with the artists or their representatives.  The evidence is to the effect that reproductions of this kind are permitted by Aboriginal artists, including those involved in this case, and by traditional owners, where the reproduction is in a prestigious publication for the purposes of educating members of the white community about Aboriginal culture.  In each of the ANG and AIS publications the artworks were accompanied by brief descriptions of the subject matter of the artist's work.  With one qualification, the descriptions made it plain that the subject matter concerned creation stories of spiritual and sacred significance to the artist.  The one qualification is in respect to the Seven Sisters Dreaming where the description at the foot of the AIS reproduction does not spell that out expressly.  However the introduction page to the 1986 calendar makes the following clear statement about the significance of the works in that publication:

"The paintings have been acclaimed as 'statements of great value to the people who made them'. They express concepts that are intensely personal. These are very often private expressions concerned with ownership, ownership of land, ownership of stories, stories of the Dreamtime, that indefinable period of past time which to the Aboriginals is the source of all knowledge and of all living things. Sacred ceremonies, generally restricted to the initiated members of the tribe or those undergoing initiation, and their related celebrations in dance, song and design, form the basis of what may seem nothing more than complex abstract patterns in the paintings. The patterns in fact represent explicit visual descriptions, stylised maps of identifiable locations and myths, though the full meaning of each painting may not be clear to non-Aboriginal viewers.  Nevertheless, the paintings are eloquent witnesses to the rich and enduring nature of Aboriginal culture."

The right to create paintings and other artworks depicting creation and dreaming stories, and to use pre-existing designs and well recognised totems of the clan, resides in the traditional owners (or custodians) of the stories or images. Usually that right will not be with only one person, but with a group of people who together have the authority to determine whether the story and images may be used in an artwork, by whom the artwork may be created, to whom it may be published, and the terms, if any, on which the artwork may be reproduced.  The evidence in this case about these aspects of traditional collective ownership was similar to the account recently published in "Unauthorised Reproductions of Traditional Aboriginal Art", Dean A Ellinson (1994) 17 UNSW Law Journal 327.

If unauthorised reproduction of a story or imagery occurs, under Aboriginal law it is the responsibility of the traditional owners to take action to preserve the dreaming, and to punish those considered responsible for the breach. Notions of responsibility under Aboriginal law differ from those of the English common law.  If permission has been given by the traditional owners to a particular artist to create a picture of the dreaming, and that artwork is later inappropriately used or reproduced by a third party the artist is held responsible for the breach which has occurred, even if the artist had no control over or knowledge of what occurred.  The evidence of Ms Marika, which I accept without hesitation, illustrates the severe consequences which may occur even in a case where plainly the misuse of the artwork was without permission, and contrary to Australian statute law.  In times past the "offender" could be put to death.  Now other forms of punishment are more likely such as preclusion from the right to participate in ceremonies, removal of the right to reproduce paintings of that or any other story of the clan, being outcast from the community, or being required to make a payment of money;  but the possibility of spearing was mentioned by Mr Wangurra as a continuing sanction in serious cases.

Ms Marika has endeavoured to conceal the unauthorised reproduction on carpets of Djanda and the Sacred Waterhole from her community as she will be held responsible.  Her artwork expresses pictorially the creation when her ancestral creator Djang'Kawu and his two sisters, the Wagilag sisters, at the end of their journey from Burralku, landed at Yelangbara, south of Port Bradshaw, the site of their first journey. The image which she utilised in the artwork is associated with this place.  Her rights to use the image arise by virtue of her membership of the land owner group in that area, and is an incident arising out of land ownership.  She explained in an affidavit:

"As an artist whilst I may own the copyright in a particular artwork under western law, under Aboriginal law I must not use an image or story in such a way as to undermine the rights of all the other Yolngu (her clan) who have an interest whether direct or indirect in it.  In this way I hold the image on trust for all the other Yolngu with an interest in the story."

Her creation of the artwork contemplated that it would be displayed with appropriate sensitivity in art galleries and for education purposes to help bring about a greater awareness of Aboriginal culture.  The reproduction of the artwork in  circumstances where the dreaming would be walked on, is totally opposed to the cultural use of the imagery employed in her artwork.

This misuse of her artwork has caused her great upset.  If it had become widely known in her community at the time she believes that her family could have ordered her to stop producing any works of art;  they might have stopped her participating in ceremonies;  they might have outcast her, and they may have sought recompense from her - nowadays in money terms.  So far these possibilities have not eventuated - and now that she has taken action to prevent further misuse and to seek a public recognition of the past misuse through the courts, she is hopeful that the community reaction, when it learns what has happened, will be more forgiving.  I note in passing the observation in the paper "Aboriginal Designs and Copyright", Stephen Gray, Copyright Reporter Vol 9 No. 4, p.8 at 11 that punishment of the Aboriginal law breaker may to a large extent be determined by the success or failure of action in the Anglo-Australian Courts.

It is a feature of the style of the artworks in question that the artist will encode into the artwork secret parts of the dreaming that will be recognised and understood only by those who are initiated into the relevant ceremonies, or at least have a close knowledge of the cultural significance of the story. This adds to the sensitivity and risk of offending the traditional owners involved in the reproduction of Aboriginal artwork, unless the reproduction is accurate in every respect and done with full and proper permission.

The extent to which Aboriginal law and culture imposes limitations on the reproduction of Aboriginal artwork will vary according to the clans concerned and the significance of the imagery and dreaming which is reflected in the particular artwork.  Where the artwork concerns a public story or ceremony there may be few restrictions on reproduction. This is plain from the quantity and variety of artwork presently produced by Aborigines for the commercial market.  Again, depending on the subject of the artwork there may be no restriction on an artist creating a work for use under appropriate copyright licence in the mass productions of items such as clothing and wall-hangings.

The licence agreement which the respondents have with Mr Wangurra and other artists provide examples.  Evidence in this case indicates that there is continuing uncertainty in some sections of the Aboriginal community as to the appropriateness of the use of traditional images on products which utilise non-traditional mediums, and on carpets designed to be walked upon.

The reproduction of paintings which depict dreaming stories and designs of cultural significance has been a matter of great concern to the Aboriginal community.  Pirating of Aboriginal designs and paintings for commercial use without the consent of the artist or the traditional owners was common for a long time.  The recognition of the sacred and religious significance of these paintings, and the restrictions which Aboriginal law and culture imposes on their reproduction is only now being understood by the white community.

Descriptions of this emerging recognition (including early resorts to litigation), and of the frustration which Aboriginal artists have encountered along the way, may be found in the Report of the Working Party in the Protection of Aboriginal Folklore: Department of Home Affairs and Environment, Australian Government Publishing Service, Canberra, December, 1981; Protection of Folklore: The Australian Experience, Robin A I Bell (1985) Copyright Bulletin 19(2), p.4; The Aboriginal Arts and Crafts Industry Report of the Review Committee, AGPS, Canberra, July, 1989; Aboriginal Art and Copyright:

The case for Johnny Bulun Bulun,  Colin Golvan (1989) 10 European Intellectual Property Review 346; and Unauthorised Reproduction of Traditional Aboriginal Art, supra.  See also Foster and Others v Mountford and Anor. (1976) 29 FLR 233 and Yumbulul v Reserve Bank of Australia and Others (1991) 21 IPR 481.

These papers also discuss a problem perceived to exist at one time in relation to the application of the Copyright Act to Aboriginal artworks based on pre-existing tradition and images.  That problem was whether works incorporating them satisfied the requirement of originality so to attract copyright protection.  In the present case that issue has not arisen, and by the end of the trial the copyright ownership of the artists in each of the eight works was admitted. Although the artworks follow traditional Aboriginal form and are based on dreaming themes, each artwork is one of intricate detail and complexity reflecting great skill and originality.

It is against this background that the conduct of the respondents in question in the present case falls to be considered.

Carpet weaving is an age-old Vietnamese skill.  Carpets are made in a cottage industry environment.  They are made by outworkers one at a time in their homes.  The "carpet factory" with which Mr Bethune has dealt in Hanoi acts as a clearing house through which orders are distributed to individual carpet markets, and later collected and packed for shipment to Australia.

The reaction to these carpets was that they were too expensive and the design was not appealing.  There appeared to be no local market for them.  Mr Bethune says that on another visit to the carpet factory on 2 September 1991 he saw a carpet which had reproduced on it Kangaroo and Shield People Dreaming.  This carpet was 1.7m x 2.4m in size and an exact reproduction of the complete artwork.  He thought it was excellent.  He obtained permission to bring it to Australia to see if it invoked interest.  He says there was a lot of interest but the complex pattern and design work was too "complicated and busy".

At a further visit to the carpet factory on about 17 October 1991 Mr Bethune says he was shown the ANG and AIS portfolios and calendars. These he says were part of the "material" which the factory already held.  He looked through these reproductions and ordered several carpets which would reproduce certain of the prints in full.  He indicated others that he told the factory manager were too complicated, and asked that they make something along the same lines, utilising the same colours, but which were "less busy".  The orders placed at this time were packed and shipped on 21 December 1991 and 11 January 1992.  These two shipments Mr Bethune has described as "samples" and included 18 carpets of Aboriginal design including reproductions of the complete artwork in the Goose Egg Hunt (1 carpet), Freshwater Fish (2 carpets), Crow and Prayingmantis (3 carpets), Djanda and the Sacred Waterhole (3 carpets) and Emu Dreaming (1 carpet).  The order also included three other designs which it is contended by the applicants are reproductions of a substantial part of the artworks Wititj, Emu Dreaming, and Kangaroo and Shield People Dreaming within the meaning of s.14(1) of the Copyright Act. I shall refer to these carpets respectively as the snake carpet, the waterholes carpet, and the green centre carpet, descriptions at times used in the respondents' documents.  There are features about these three carpet designs which clearly indicate that the designer made reference to the Wititj, the Emu Dreaming and the Kangaroo and Shield People Dreaming artworks.  There can be no real doubt that these carpet designs were the result of the instruction to produce carpets in designs that were less busy than the original artworks.

The shipments also included two other Aboriginal designs referred to in the evidence as "firesticks" and "stars".  The latter work has been identified as work by a Groote Eylandt artist that was also included in the AIS portfolio.  That artist is not a party to these proceedings.

Mr Bethune says that when he returned to Australia after placing these orders he found that there were "lots and lots of National Gallery posters for sale everywhere" and it was no trouble to obtain copies of those which had been copied into the carpet designs.  A number of his friends told him he should be careful reproducing Aboriginal art because of copyright.  He says that he and his wife decided it would be prudent to investigate the copyright implications.  Through his local doctor he was introduced to Mr Ian Horrocks, who had considerable experience with Aboriginal affairs.  Mr Horrocks was at the time the office manager of the Aboriginal Legal Service of Western Australia Inc.  He was not a lawyer.  By arrangement Mr and Mrs Bethune visited Mr Horrocks at his home one evening in June 1992.  Mr Bethune discussed his proposal to import carpets.  Different versions of this and later discussions between them have been given by Mr Bethune on the one hand and Mr Horrocks on the other.  Where their evidence differs I prefer the evidence of Mr Horrocks.  It is common ground that Mr Horrocks confirmed that there was a copyright issue to be addressed.  He expressed his view that the importation of carpets into Australia which reproduced the artwork constituted a breach of copyright.  He suggested that the appropriate body through which to seek copyright permission would be the Aboriginal Arts Management Association ("AAMA"), a body which had recently been set up under the auspices of the Aboriginal Arts Unit of the Australia Council with funding from that body to provide advice to Aborigines on copyright matters and to seek remedies where infringements were detected.  Mr Horrocks knew that this body had been established following The Aboriginal Arts and Crafts Industry Report of the Review Committee, in 1989.

Mr Horrocks was asked to make a very general enquiry with AAMA regarding copyright permission from the artists, but  not to mention that some carpets had already been imported. Mr Horrocks telephoned Mr McGuigan, the then director of AAMA and made that enquiry.  Mr McGuigan has no recollection of it, indicating, I think, the general nature of the enquiry.  The importation of the carpets was not mentioned.  Mr McGuigan suggested that a written request  be made for copyright approval and asked that the artists and their particular works be identified. I accept Mr Horrocks' evidence that Mr McGuigan referred to "the T-shirt case" (the case of Johnny Bulun Bulun) which had resulted in a settlement under which an infringer of copyright of Aboriginal artworks reproduced on T-shirts paid approximately $150,000.  I accept Mr Horrocks' evidence that he mentioned this case to Mr Bethune when they next communicated.

Mr Horrocks reported back to Mr Bethune and requested details of the artworks concerned so that he could prepare a letter to AAMA.

On the night of the exhibition Mr Horrocks expressed immediate concern that an exhibition was occurring as copyright approval had not been obtained. He told Mr Bethune in unequivocal terms that the exhibition should stop.  He says his anger increased when he observed that the carpets on display reproduced important artworks about which nothing had been said to him, and that the carpet sizes and numbers exceeded those about which he had been told.

Mr Horrocks also notified AAMA that he was no longer acting for Beechrow.

A further extraordinary tactical stance was taken by the respondents.From the outset they refused to admit the copyright ownership of the artists in their artworks.  Only as the evidence unfolded at trial did the unreasonableness of this stance become fully apparent.  The evidence revealed that Mr Bethune almost from the outset was in possession of the portfolio of the reproductions of the artworks from which the carpets were manufactured. It was never suggested that the artworks lacked originality.  Each of the portfolio reproductions clearly identified the artist.  Each work is so distinctive that there could never have been a doubt about identification.  It was not until late in the second week of trial that copyright ownership of the last of the artworks was conceded.  Even though the respondents wished to argue that the snake, the green centre and the waterholes carpets do not reproduce a substantial part of the original artwork, that provided no justification for denying copyright ownership in the artwork itself.  The refusal to admit copyright ownership added greatly to the applicants' costs of the trial as much work was involved in obtaining affidavit evidence to prove copyright ownership, particularly in the case of the deceased artists.

These tactical stances are now relied on by the applicants as matters highly relevant to the flagrancy of the alleged infringement and the assessment of the additional damages required to compensate the cultural and personal hurt to the artists.  It will be necessary to return to that topic.

Copyright infringement by Beechrow. The infringements pleaded by the applicants included direct infringement contrary to s.36 of the Copyright Act and indirect infringements under ss.37 and 38.  In light of the way the trial has been conducted, and concessions made in the course of the respondents' case as to the basis on which conversion damages should be assessed in respect of any infringement found to have occurred, it is appropriate to concentrate on s.37.  That section relevantly reads: "37...the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, without the licence of the owner of the copyright, imports an article into Australia for the purpose of: (a)   selling, letting for hire, or by way of trade offering or exposing for sale or hire, the article; (b)   distributing the article: (i)   for the purpose of trade; or (ii)  for any other purpose to an extent that will affect prejudicially the owner of the copyright; or  (c)   by way of trade exhibiting the article in public; if the importer knew, or ought reasonably to have known, that the making of the article would, if the article had been made in Australia by the importer, have constituted an infringement of the copyright."

The artworks were plainly major artworks by identified artists. By the time the carpets ordered following the samples entered Australia, the existence of copyright and the implications of Beechrow's proposed course of conduct had been made plain to Mr Bethune by Mr Horrocks.  Even if Mr Horrocks did say that he would be able to obtain copyright approval and that it was in order for arrangements to be made for the exhibition (contrary to my findings), the state of knowledge which Mr Bethune possessed or should have possessed from the time of his visit to the factory in Hanoi in October 1991 would have remained essentially the same.  He was at no time told that copyright approval had been given, nor did he enquire as to the position at any time after the letter seeking approval was despatched to AAMA.  In the case of carpets which entered Australia following the exhibition and the discussion with Mr Horrocks on 24 October 1992 the state of knowledge of Mr Bethune was then plain.

Whether the carpets which are not exact reproductions of the artwork infringe the relevant artwork, and the requirements in s.37 as to knowledge in relation to those carpets if they constitute substantial reproductions raise more difficult questions.  I shall consider each of the disputed designs separately.

Wititj

According to the information which accompanies the ANG portfolio this artwork is a representation of an olive python and its young.  It is the final painting in a series of 15 by the artist which depicted aspects of the story of the Wagilag Sisters' (to whom reference has already been made in relation to Ms Marika's artwork).  The artist, an old man at the time that the artwork was created, knew both the "inside" and "outside" meanings of the story.  Only the "outside" version can be told to women and children.  In the painting the artist has used a stylised representation of an olive python to symbolise the mythical rainbow serpent.  The artwork is rectangular in shape, and in the particular representation an adult python is curled closely around two baby pythons.  The body of the python is shown lying in "square coils", that is the body, commencing with the tail located at one corner of the bark, follows the border of the bark for one complete circuit, and then makes three more circuits, each inside of, but parallel to, the previous one.  In this way the painting depicts four curls of the body before the head reaches the centre portion of the painting.  Encompassed within the four coils is a rectangle containing the two baby pythons and the head of the adult.  The depiction of the adult python's vent, the cross-hatching or rarrk which infills the body sections, and the shape of the head are distinctive.  One of the baby pythons is black, and the other a dark ochre.  The painting is predominantly in white, yellow and ochre colours.

The snake carpet reproduces the same basic colours and hues.  The predominant feature of the carpet is one snake which follows a course parallel to the edges of the carpet so as to create a broad border image.  The major area of the carpet, lying within that border is a plain ochre colour closely similar to the background of the Wititj artwork.  The unusual depiction of the vent of the snake and the particular cross-hatching which infills the body of the python on the Wititj is reproduced in almost identical form on the carpet. The difference in the body of the snake reproduced in the carpet is mainly in the number of curls of its body.  The shape of the head of the snake on the carpet bears some similarity to that of the adult Wititj in the artwork, but whereas the artwork shows the python with an ochre head and white neck, the neck and head on the snake on the carpet is black. There are therefore differences.  The carpet has only one snake, the body of that snake whilst closely similar in pattern to the adult python on the Wititj, has a different coloured head, and the body travels only once round the border of the carpet.

It should be added that both the Wititj and the carpet have a thin white line as an extreme outer border.

Applying these principles to the snake carpet I am in no doubt that it constitutes a reproduction of a substantial part of the artwork. There are striking similarities on a visual comparison of the artwork with the carpet. Whilst the dreaming of the Wititj is often told in Aboriginal artwork, the particular depiction of the tail and the rarrk used in this artwork is original and distinctive. There is on any view a substantial use of that part of the artwork in the carpet.  I reject the arguments of the respondents that the particular depiction of the Wititj on the carpet is common to many Aboriginal artworks and involves no originality.  I have looked through the several recognised texts on Aboriginal art which have been tendered by the respondents.  In my view the artworks that they have identified to support this argument establishes that the contrary is the case.  None of the other artworks show anything which closely resembles the main features of the snake carpet.  The most important consideration however concerns the existence of an "animus furandi" on the part of the designers of the carpets, that is to say an intention on the part of these people to take from the Wititj artwork for the purpose of saving themselves labour; cf Ravenscroft v Herbert and New English Library Ltd at 207. The evidence of Mr Bethune is revealing.  The artwork was before him and the factory manager.  Mr Bethune said it was too complicated (otherwise, by inference, the artwork without modification would have been copied), so he instructed that it be simplified.  This was achieved by an uncomplicated elimination of part of the body of the adult Wititj, the removal of the babies, and a transfer of the striking colour from one of the baby pythons to the head of the adult.  The complex parts of the des ign and artwork in the tail and body colouring was copied exactly to form the predominant feature of the carpet.  It is also revealing that the carpet factory then assigned the carpet the code "4A", 4 being the number of the ANG portfolio print, and also coded three of the exact copies from other prints according to the ANG numbers, viz 5A, 6A and 9A.

Green Centre Carpet

Like the snake carpet, this carpet was the product of Mr Bethune's direction to make a more simple design, as Kangaroo and Shield People Dreaming was too complicated.

The original artwork is a very complex painting which incorporates numerous important sites, represented by concentric circles, joined by dreaming or journey tracks in a multi-coloured dot-painting style, characteristic of some of the leading artists of the Pintupi tribe in the 1970-1980's.  The very detailed pattern represents, as it were, a topographical map recording many important sites and events which impacted on the life of the artist.  A distinctive shade of green is a common feature of some areas of the artwork. The carpet, like the snake carpet, has a plain centre.  It adopts a shade of green prominent in the artwork.  The carpet has a wide border consisting in essence of two parallel tracks punctuated by concentric circles (plainly representative of sites along a dreaming or journey track) with diagonal tracks criss-crossing between the outer tracks as part of the infill to the border. In a very crude sense at first glance the border has the design of a simple engineering form used in trusses, but on a closer look there is a lack of precision or uniform repetition in the placing of the "cross braces" that renders the analogy a bad one.  The irregular form, placement, and colours of the design and the sizes of the concentric circles show that the design is not simply a repetition of an elementary or common design pattern.  A close comparison of the carpet with the artwork reveals that the unusual border pattern is extracted from one portion of the artwork - a portion comprising not more than 5-10% of the artwork - and then repeated with few modifications in sequence around the border of the carpet.  The colours, sizes, and joining tracks in the border are a very close copy of part of the artwork.

When the pattern is studied it is highly distinctive.  Moreover the evidence of Dr Vivien Johnson in particular, but also Mr McGuigan, is that the pattern is unique.  It adopts common western desert symbols as part of the design, but that does not prevent the result having a high degree of originality.  Mr Payunka and the experts who gave evidence identified the border as copying parts of the artwork. I am satisfied that the carpet does copy the artwork in part.  Mr Payunka's observations about this carpet are as follows:

"I can identify the border in the photocopy as coming from a part of my artwork.  The part that has been copied comes from the circles and lines which are shown on the left hand side of my painting.  The imagery has been straightened.  It contains an important part of the story being told in my painting which contains some secret sacred stories concerning what I call 'men's stories'.  I am not permitted to relate the content of these 'men's stories' because of their secret sacred nature, but I can say that the stories being told in the painting concern the main creation story of my tribe...It is not right for my painting to be copied for commercial purposed (sic) onto carpets.  It is also not right for my painting to be copied in a way where part of it has been altered and part of the painting left out.  I am happy for people to learn about my culture and heritage, and the accurate reproduction of the painting for the purposes of education and cultural exchange is appropriate...I wish the Court to know that I am very upset about the copying of my painting on carpets by the Respondents in this proceeding."

 

Again, a perusal of the works on Aboriginal art tendered by the respondents to show the absence of originality in my view demonstrates the contrary, and shows just how distinctive is the pattern (including the colours) taken from the artwork.

Although as a proportion either of the total artwork, or the total carpet, the area of copied material in comparison with the whole is not great, in a qualitative sense the copying is substantial.  The pattern taken from the artwork constitutes the striking feature of the carpet. And again a predominant consideration is the animus furandi of those responsible for the design - Mr Bethune for Beechrow and the manager of the carpet factory.  I find that the copying of the artwork is substantial.

Waterholes

The waterholes carpet is also in my view substantial reproduction of Emu Dreaming. The artwork is again a complex, detailed design which, unusually at the time it was created,  incorporated vivid blue and purple colours on a background of differing shades of ochre.  The original artwork at the top and down the right hand side depicts a dreaming track starting and finishing at a site, with six intermediate sites along the way.  On those two edges the painting of the dreaming track presents as a border.  Within that border and as the central feature of the artwork is a pattern formed by a central site surrounded by seven other sites. Each of the sites has a blue centre.  The seven outer sites are joined one to another by a double ochre journey track, and form the circumference of an oval shape around the central site.  Each of the outer sites are joined to the central site by double blue tracks.  All the sites and the tracks have outer borders of two parallel white lines. All the circles, tracks and lines are formed by a succession of dots. The infill between the tracks and the sites contains distinctive patterns of dots.  On the artwork there is a bold representation of emu tracks leading from the foot of the picture into the central site.

The waterholes carpet has a background of ochre colours.  It is bordered on all four sides by a continuous track of double ochre lines, bordered by double white lines and punctuated by sites represented by concentric circles. In visual effect it takes from the artwork the outer border which appears on two sides of it and extends it completely around the design.  Then within the border the carpet has a pattern which very closely resembles the central pattern of the artwork, utilising a similar layout, number of tracks and sites and similar colours.  The number of concentric circles and the exact proportions of the pattern varies somewhat from carpet to carpet - a matter of necessity I infer to accommodate the design to the size and shape of the particular carpet.  But the visual impression of the colours and design of the carpets is the same, and in my view is strikingly similar to the central feature of the original artwork.

I hold that the waterholes carpet is a copy of a substantial part of the original artwork.

 

Liability of the respondents

The pleadings made unequivocal allegations that each of the individual respondents, including Mr King and Mr Rylands, were personally liable for authorising the infringements, and for aiding, abetting, counselling, procuring and being directly or indirectly knowingly concerned in contraventions of the Trade Practices Act.

In summary, reasonable enquiry by Mr King and Mr Rylands in response to the service of the proceedings would have brought to their notice the fact that Beechrow had in 1992 imported carpets which were exact reproductions of seven of the eight artworks identified in the statement of claim taken from the ANG or AIS portfolios;  that the company had also imported snake, green centres and waterholes carpets that were or might have been within the allegations of infringement; and that the company in 1993 was continuing to import and market snake, green centres and waterholes carpets.

That permission may be implied from acts of indifference and omission was also recognised by Jacobs J (with whom McTiernan J agreed) in University of New South Wales v Moorhouse and Anor at 20.  His Honour was considering the meaning of "authorises" in s.36 of the Copyright Act, but his observations apply more generally:

"It (the word 'authorises') has, in relation to a similar use in previous copyright legislation, been given the meaning, taken from the Oxford Dictionary, of 'sanction, approve, countenance'.  See Falcon v Famous Players Film Co. (1926) 2 KB 474 which was approved in Adelaide Corporation v Australasian Performing Right Association Ltd.  I have no doubt that the word is used in the same sense in s.36(1).  It is a wide meaning which in cases of permission or invitation is apt to apply both where an express permission or invitation is extended to do the act comprised in the copyright and where such a permission or invitation may be implied.  Where a general permission or invitation may be implied it is clearly unnecessary that the authorizing party have knowledge that a particular act comprised in the copyright will be done. The acts and omissions of the alleged authorizing party must be looked at in the circumstances in which the act comprised in the copyright is done. The circumstances will include the likelihood that such an act will be done.  '...(t)he Court may infer an authorization or permission from acts which fall short of being direct and positive;...indifference, exhibited by acts of  commission or omission, may reach a degree from which authorization or permission may be inferred.  It is a question of fact in each case what is the true inference to be drawn from the conduct of the person who is said to have authorized...' (per Bankes LJ in Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd (1924) 1 KB 1 at p.9."

The carpets are priced according to size and presented as PROUDLY DESIGNED IN AUSTRALIA BY AUSTRALIAN ABORIGINALS. MADE IN VIETNAM

The text is false in a number of respects, particularly in the case of the snake, the green centre, and the waterholes carpets.  With those carpets the applicants are in a dilemma.  If the carpets were not substantial reproductions of the artworks, it is false to say that they had been designed by Aboriginal artists.  It is false to say that the artists are paid royalties.  In the course of evidence it has been disclosed that the swing tags have also been attached to other carpets which have no Aboriginal association whatsoever, and the swing tags make false and misleading statements about those carpets.

In my opinion the contraventions of ss.52, 53(c) and 53(d) of the Trade Practices Act alleged by Beechrow are made out.  No argument was addressed about s.55, and I make no finding under that section.  The damages already awarded in respect of the copyright infringements fully compensate for the losses that would otherwise be the subject of damages under the Trade Practices Act.  The only additional remedies sought by the applicants are by injunction.  I will hear the parties as to the form in which injunctive relief should be granted after delivery of judgment.

There remains the question of interest sought by the applicants. I consider interest should be awarded under s.51A of the Federal Court of Australia Act 1976 and not by way of damages.  In my opinion this is not a case where interest should be awarded at commercial rates or compounded. Interest should be at bank deposit rates.  There should be interest on the monetary award for conversion damages.  In the case of the carpets to be delivered up I do not think it would be appropriate to allow interest either on the notional value of the carpets or at all. The carpets which are complete reproductions were withdrawn from sale at the respondents' request in about December 1993, not long after some of them had been imported and the carpets effectively ceased to be trading stock or to have commercial value to the respondents from that date. Interest should be allowed on the award of $12,000 for the depreciation in the commercial value of the copyright.  The damages under s.115(4) are in part punitive in nature, and to that extent do not carry interest: s.51A(3)(c).  I think it would be appropriate to award interest on $30,000 of the damages awarded under s.115(4).  As it is impossible to fix a date prior to the issue of the proceedings when any particular loss occurred, and as the losses probably occurred progressively, I propose to allow interest from the date of the issue of the proceedings.  Interest will run from 8 April 1993 to 13 December 1994 (614 days).  In the absence of a more precise interest rate figure from the parties I propose to use a rate of 7%.

 

Established  entitlements

In summary the applicants have established entitlements to the following orders:

1.    Injunctions against all respondents against further infringement of the artworks.

2.    Injunctions against Beechrow and Mr Bethune against further contraventions of the Trade Practices Act.

3.    An order against Beechrow for delivery up of the carpets identified in Exhibit A69.

4.    Judgment in favour of the applicants jointly against Beechrow and Mr Bethune for $188,640.52.

5.    Judgment in favour of the applicants jointly against Mr King and Mr Rylands for $43,222.18.

6.    Liberty to the applicants to apply to have the judgment sums increased in the event that any of the carpets in Exhibit A69 are not delivered up.

7.    Liberty to the applicants to apply to have separate judgments entered in favour of each of them in lieu of the judgments proposed in paragraphs 4 and 5 hereof.

      The applicants should bring into Court minutes of order to reflect

      this judgment.

      It will be necessary to hear the parties as to costs.

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