Milpurrurru, G. & Ors v. Indofurn P/L & Ors [1994] FCA 975

Federal Court of Australia|1994-12-15|Before: Doussa J

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 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 Gamarang Wititj (died 23 March 1993) (olive python)
Fred Nanganaralil Wamut Crow and Praying- (died 28 August 1993) mantis
Banduk Marika Djanda and the

Tim Leura Tjapaltjarri Tjapaltjarri The Seven Sisters (died 18 June 1984)

Uta Uta Tjangala Jangala Emu Dreaming (died 8 December 1990)

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¢ Australian stamp issued on 4 February 1993. A large number of these stamps were put into circulation,

Freshwater Fish is recognised as one of the major works of Gamarang, 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

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.

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 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 evidence led at trial, including the evidence of an Aboriginal artist, Mr Bruce Wangurra, called by the respondents, explained the importance of the creation stories and dreamings in the cultures of the clans to which they relate. Those stories are represented in ceremonies of deep significance, and are often secret or sacred, known only to a few senior members of the clan chosen according to age, descendence, sex, initiation, experience in the learning of the dreamings and ceremonies, and the attainment of skills which permit the faithful reproduction of the stories in accordance with Aboriginal law and = custom. Painting techniques, and the use of totemic and other images and symbols are in many instances, and almost invariably in the case of important creation stories, strictly controlled by Aboriginal law and custom. Artworks are an important means of recording these stories, and for teaching future generations. Accuracy in the portrayal of the story is of great importance. Inaccuracy, or error in the faithful reproduction of an artwork can cause deep offence to those familiar with the

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

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

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:

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

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

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

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

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 and [Intellectual Property Review 346; and Unauthorised Reproduction of fraditional Aboriginal Art, supra. See also Foster & Others v Mountford & Anor. (1976) 29 FLR 233 and Yumbulul v Reserve Bank of

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

the respondents in question in the present case falls to be

The first respondent has changed its name since the commencement of these proceedings. When the relevant events occurred it was Beechrow Pty Ltd. I shall refer to it as "Beechrow" as many of the documentary exhibits use that name. The other three respondents have at all material times been the directors of Beechrow. The second respondent, Mr Bethune described Beechrow as a one person company, that person being himself. The company has two issued shares, one held by Mr Bethune and the other held by the fourth respondent Mr Rylands. Mr Bethune asserted in evidence that the roles of the respondents Mr King, and Mr Rylands were nominal. He said the company has never held directors' meetings. He alone runs the company, makes the decisions, and keeps the financial statements. Although Mr Bethune described himself as an accountant, the records of Beechrow produced to the Court, and in particular the sparse records kept pertaining to the carpets, has left a lot to be desired. The length and

complexity of the trial has been contributed to by this

Beechrow was acquired by Mr Bethune in October 1991 as a vehicle through which he could conduct a business as a negotiator and consultant for the sale of water purification plants in Vietnam. Mr Bethune lives in Perth. Insofar as Beechrow conducts business in Australia, it does so from Perth. Mc Bethune has visited Vietnam many times since acquiring Beechrow, and Beechrow has a number of employees in Vietnam. The company has pursued several ventures, including the importing into Australia of fish products and timber, and is now concentrating on the manufacture in Vietnam of garden furniture for export to Europe. The company's involvement

with carpets has at all stages, so Mr Bethune says, been

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

The carpet venture started in July 1991 - before Mr Bethune acquired Beechrow. To ingratiate himself with a Vietnamese family, a member of which was a potential customer for water purification plants, Mr Bethune acquired a number of hand knotted pure wool carpets from a carpet factory which was

managed by another member of the family. These were traditional Oriental carpets which were later used by Mr King in his home. A few similar carpets were brought to Australia

to test whether there could be a market for them here.

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

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

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 acknowledges that he knew from the time of his visit to the factory in Hanoi that the carpet designs

utilised ANG or AIS "posters". The samples arrived in Australia on 20 March 1992. They were favourably received by those to whom they were shown, and Mr Bethune decided to place larger orders. He did so in about early April 1992. The carpets were shipped under cover of packing slips dated 30 April 1992, 12 May and 1 June 1992 indicating that the carpets had been woven in the meantime. These orders were for a further 70 carpets, each the subject of these proceedings. When the orders were placed it was anticipated that the carpets would arrive in Australia

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

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

Mr Horrocks reported back to Mr Bethune and requested details of the artworks concerned so that he could

On 29 July 1992 Mr Bethune on behalf of Beechrow faxed Mr Horrocks photographs of 6 carpets and identified 6 Aboriginal artists, (5 of those presently involved). The waterholes carpet was wrongly attributed to Tim Payunka Tjapantgati, a mistake which later led to a good deal of

Mr Horrocks prepared in draft a letter to be sent by him on behalf of Beechrow to AAMA. Mr Bethune made certain amendments, and the letter was despatched to AAMA at 12 Bellevue Street, Surrey Hills, NSW, on 14 August 1992. The letter enclosed the faxed copies of 6 of the carpets earlier supplied by Mr Bethune, and a list of 6 artists whose works had been used. Copyright permission was sought. As a mark of good faith a cheque for $750 was enclosed on account of royalty fees. This amount had been calculated upon information set out in the letter, that 50 carpets 2m x 1m had been made and landed in Australia at that stage at a landed

cost of $180 per carpet. The cheque represented a royalty of approximately 8 per cent of the landed costs. (It is not possible to reconcile this number and size of carpets with the shipments proved in evidence). Mr Horrocks says he informed Mr Bethune that as it would probably be necessary for AAMA to contact the artists there could be significant delay before a reply was received, and that there was no certainty that copyright approval would be granted. Mr Bethune, on the other hand, says that Mr Horrocks told him that there should be no problem in obtaining the copyright approval and that it was in order for him to go ahead with plans for an exhibition of the

Unfortunately the letter to AAMA was incorrectly addressed. The organisation's address was 13 Bellevue Street.

In mid-1992 Mr Bethune says he was heavily involved with Beechrow activities in Vietnam, and Mrs Bethune took over the day to day management of the carpet venture. She proceeded with plans to hold an exhibition of the carpets at

the Guildford Hotel, Guildford, the opening to occur on 23 October 1992.

The carpets ordered between 30 April and 1 June 1992

Bethune to Mr Horrocks before the day of the exhibition. On the night of the exhibition at about 8.00 p.m. Mr Bethune telephoned Mr Horrocks, and expressed disappointment that he was not at the opening, and suggested that the invitation to Mr Horrocks may have been incorrectly addressed. 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. Mr Bethune said it was too late and suggested that Mr Horrocks come over and see the carpets. Mr Horrocks was angry, but, later in the evening attended. 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. He left the exhibition without

The following day he was contacted by Mr Bethune who angrily accused him of saying to people at the exhibition that the carpets had been made on computer operated mechanical looms. Mr Horrocks denied that he had made any such remark (and I accept his evidence that he had not). Their discussion

was acrimonious and Mr Horrocks terminated their relationship.

uncertain. Mr Bethune asserts that it was a commercial one under which Mr Horrocks was appointed Beechrow's agent for a fee upon his undertaking to obtain copyright approval. Mr

Horrocks says that the terms of the arrangement were not discussed and it did not have the formality alleged by Mr

On 19 November 1992 Mr Horrocks sent a long letter to Mr Bethune confirming his version of the events which had happened. Mr Bethune did not respond to or deny the assertions made in that letter. Mr Horrocks said he denied having ever expressed a belief that Mr Bethune could hold the exhibition once the cheque of $750 had been sent to AAMA as a sign of good faith. The letter also records threats which he says Mr Bethune made to him to be implemented should Mr

Horrocks take any steps to disrupt the exhibition at the

Mr Horrocks also notified AAMA that he was no longer acting for Beechrow. This advice, meaningless on its own, was the first written notification that AAMA had received concerning the matter, and the first advice of the name Beechrow. The significance of the communication became apparent to AAMA when on 23 November 1992 Mrs Bethune contacted the organisation, and sent a copy of the draft text of the letter of 14 August 1992, and copies of the relevant ANG and AIS reproductions together with photographs of some of the carpets that had been generated by reference to those posters. In her covering letter Mrs Bethune stated that some of the carpets were "more an extract of an Aboriginal painting" than an exact copy. She said that Beechrow would

like to reach an agreement with the Aboriginal artists as soon as possible so that Beechrow could proceed with the production of the carpets. She said "we would like to produce these carpets in a small commercial way, at the same time promoting

On 2 December 1992 Mr Horrocks forwarded to Mr McGuigan a photocopy of the letter of 14 August 1992 together with enclosures, a photocopy of the cheque which had gone astray (and was never received), and a copy of the catalogue of carpets that had been offered at the Guildford exhibition. The price list showed that the carpets were on offer at $250 per square metre, and in various sizes up to 2.7m x 3.5m in

the case of a carpet reproducing the Seven Sisters. That was

At about the same time AAMA received an enquiry from an Aboriginal art dealer in New South Wales enquiring whether the carpets, some of which were on consignment for sale from Beechrow, were the subject of copyright approval. Mr McGuigan's enquiries indicated that the carpets were on offer at a significantly higher price in Sydney, for example a 2.7m

x 3.5m Seven Sisters carried a price tag of $4,252.

Mr McGuigan was quickly able to identify a number of the artists as the reproduced artworks were well known. He contacted Ms Marika, and endeavoured to contact other artists. Ms Marika indicated her distress and annoyance at _ the

infringement of her copyright and made it plain that in no circumstances would she give her permission for her artwork to

By 10 December 1992 Mr McGuigan had not received responses to all of his communications, but the response from Ms Marika, and from art centres through whom the Arnhem Land and Central Australian artists dealt indicated that the artists in question would in general be angry and would want the infringement stopped. Accordingly on 10 December 1992 AAMA wrote to Mr and Mrs Bethune on behalf of Beechrow asserting an inexcusable failure to obtain copyright approval, infringement of copyright, and breaches of s.52 and 53 of the Trade Practices Act. The letter demanded on behalf of the artists an immediate cessation of manufacture, sale and advertising of the carpets, delivery up of the offending Carpets, and a statutory declaration as to the number of carpets manufactured, the names and addresses of customers, and a statement of profits of the business. The letter also demanded payment of the total profits within 28 days. If undertakings to comply with these demands were not forthcoming by 24 December 1992 court action was threatened in which conversion damages pursuant to s.116 of the Copyright Act and additional damages under s.115 of the Act, arising from the

flagrancy of the infringement would be claimed. The letter

Mrs Bethune replied by letter dated 16 December 1992

saying that "the carpets which may bear some resemblance to artworks by your clients have been withdrawn from sale and manufacture". However she advised that the other demands in the letter would not be met in view of the threatened court action. The letter went on to say: "One thing though you should be very clear on is that considerable loss has been incurred to date in the sale and promotion of Aboriginal design carpets. This will be proven in Court. I do trust that you have conveyed to the artists mentioned the Full facts surrounding this case but in case you have not I will be taking independent steps to inform them myself even if it means travelling to their respective locations." This letter was the commencement of a pattern of conduct that was followed by the respondents which expressed or implied the view that AAMA was acting contrary to the best interests of the Aboriginal artists and was being unreasonably obstructive to the implementation of a commercial bargain which could give monetary returns to the artists. This theme was taken up again in a further letter from Mrs Bethune to AAMA on 21 December 1992. Having referred to the production of the carpets in Vietnam and having made an assertion that Mr Horrocks had given advice that the Guildford exhibition could go ahead as he could see no problems, the letter continued: "As the exhibition created a lot of interest and subsequent events showed that formal permission had not been obtained, I approached your Department direct. This has resulted in a deluge of negative action. If I was an unscrupulous operator trying to take advantage then fair enough, but I am a long time supporter of aboriginal rights and aspirations

and a recorded donour (sic) to the aboriginal scholarship scheme in W.A.

I. have been approached by many W.A. aboriginal artists to use their work and in view of your association's attitude have begun to sign agreements with them. This is indeed a pity, for the works of the artists in question are very suitable for carpet weaving and could be used to the artists' benefit.

If you think a damages action will produce more return than a continuing commercial relationship with your artists then so be it, but maybe you should read again the story of the goose that laid the golden eggs. I repeat again my advice in the last fax to you, that a substantial loss has been incurred in importing, promoting and_ selling aboriginal design rugs.

sales but I cannot and will not pay to you the total

proceeds of carpets sold as well as absorb the costs

In a further communication on 19 January 1993 with AAMA Mrs Bethune returned to the topic again. She repeated the offer to pay a royalty of 8 per cent of the manufacturing costs with an upfront payment in good faith and she concluded by saying:

"As I said in my last letter to you, it is indeed a

great way to promote aboriginal art and culture world wide."

There is evidence that some attempts were made by Mrs Bethune early in 1993 to communicate direct with the artists to seek their approval. For example a copy of a carpet reproducing the Freshwater Fish was sent to Maningrida Arts and Crafts with a request that they seek permission from Ngaritj for its reproduction. That carpet was later given to the artist by Mr Peter Cook. The artist was extremely angry and upset about the infringement and refused permission for

Agreement was not reached with any artist, and these

The exhibition held on 23 October 1992 established that there was a viable market for carpets of this kind in Australia and in the two years since the exhibition the respondents have extended the importation and distribution of Vietnamese carpets to many centres in Australia. For the most part it appears that from 10 December 1992 carpets that are exact reproductions of the subject artworks have not been distributed or displayed for sale, although there has been at least one and possibly more isolated sales on enquiry to an agent who held consignment stock, and the importation of two Freshwater Fish. Notwithstanding Mrs Bethune's letter of 16 December 1992 Beechrow continued to market the snake, the green centre and the waterholes carpets. By the time the trial commenced, carpets being sold included a range of designs from 2 or 3 Aboriginal artists (including Mr Wangurra) who have given copyright approval for the use of a number of

Discovery by the respondents in this matter has been unsatisfactory. The numbers of carpets imported into Australia and their design were only satisfactorily established when Mr Bethune gave evidence and identified packing slips produced from a variety of sources, including from the Customs agents who had cleared the shipments for

Beechrow. A schedule of carpets prepared by the applicants' solicitors from that evidence eventually became common ground and is now Exhibit A68. According to the schedule there were imported into Australia 115 carpets which for practical purposes were exact reproductions of 7 of the artworks totalling 407.37 square metres together with 69 snake carpets alleged to be derived from the eighth artwork (Witit}) totalling 225.28 square metres, 39 green centre carpets from Kangaroo and Shield People Dreaming totalling 158.23 square metres and 23 waterholes from Emu Dreaming totalling 58.56 Square metres - in all 246 carpets totalling 845.44 square

All the orders for carpets, and all the paperwork connected with them apart from the first four Kangaroo and Shield People Dreaming carpets, were in the name of Beechrow. Beechrow for the purposes of Australian law has been the importer. In the early stages of the carpet venture Beechrow was distributing and offering for sale the carpets in Australia. During 1993 (after the institution of these proceedings) Mr Bethune and his wife formed another company Jamila Holdings Pty Ltd which since then has marketed carpets in Australia under the name Beela Art Rugs. Beechrow however has remained the importer, and the trial has been conducted on the assumption that the transfer of marketing activities to the new company has not altered whatever liability otherwise

As originally instituted these proceedings named each of the artists as applicants, even though two of them had been dead for many years, and one had died shortly before the institution of the action. That the action was commenced in this way through the Northern Australian Aboriginal Legal Aid Service was treated by the respondents as yet another instance of AAMA (whom they correctly assumed were giving instructions to the Legal Aid Service) acting without instructions from and

The error was realised by the Legal Aid Service by the time of the first directions hearing in July 1993 and the proceedings were amended accordingly to include the Public Trustee. Further amendments were made later in the proceedings to reflect the deaths of two more artists. Pursuant to the Administration and Probate Act (1969) (NT) the Public Trustee is automatically the legal personal

Throughout the directions hearings, and again at the commencement of the trial, the respondents and their advisers aggressively advanced the argument that the proceedings were being run by AAMA not in the best interests of the particular Aboriginal artists but, by implication, in pursuit of some hidden agenda. The highwater mark of this approach was an application made by the respondents immediately before the commencement of the trial to have the action dismissed or stayed on the ground that it had been commenced without the

instructions of the applicants. This application had been foreshadowed in the amended defences of each of the respondents in the following plea:

"1. The ... respondent denies that the persons now named as the first three Applicants and the persons formerly named as Applicants but now said to be represented by the fourth Applicant have authorised these proceedings to be brought in their names."

In pre-trial directions hearings the respondents' lawyers had been advised that the pleading was inappropriate in a defence and that if the issue were to be pursued it should be by separate application: see Inglis v Moore and Others (No.2) (1979) 25 ALR 453 at 465 and Richmond v Branson & Son [1914] 1 Ch. 968. The application was pressed notwithstanding the fact that the Public Trustee is a statutory office holder with statutory powers and duties to bring an action of this kind,

and that the three living artists had filed affidavits clearly

The application proceeded by the respondents' counsel calling the Public Trustee who not unsurprisingly confirmed that he had authorised the proceedings on behalf of the deceased artists. The application was dismissed and the trial proceeded, but information elicited in the course of the application was repeatedly (and erroneously) said by the respondents' counsel to demonstrate that the proceedings were really being run by AAMA otherwise than in the interests of the artists. The length, complexity and cost of this trial shows just how unfortunate and tactically unwise this aggressive approach to the proceedings has been. The evidence

demonstrates beyond any doubt that AAMA has at all times been acting strictly in accordance with the wishes of the Aboriginal artists, and that without AAMA's support a very serious copyright infringement of major artistic works could have remained unremedied. The literature on the preservation of Aboriginal folklore in Australia already referred to, had the respondents' camp thought to read it, would have led them to the same conclusion. At one point the respondents' case even sought to attack the bona fides of AAMA and its objects. Again, the background to that organisation and the fact that it is controlled by members of the Aboriginal community was

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 (see s.127 of the Copyright Act). 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.

Mr Bethune in his evidence said that the stances he adopted were "an emotional thing" as he felt the artists were

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.

For completeness one other aspect of the proceedings should be recorded. Beechrow and Mr Bethune by cross-claim sued both Mr Horrocks and the Aboriginal Legal Service of Western Australia Inc. The cross-claim alleged that Mr Horrocks in his own capacity and in his capacity as an officer and employee of the second cross-respondent agreed to negotiate licence or royalty agreements with the copyright owners and that he falsely represented that he had the expertise to do so. Indemnity or contribution towards any damages awarded to the applicants was sought together with

damages for breach of contract and misrepresentation. Before trial the cross-claim against the second cross-respondent was dismissed with costs on an application for summary judgment. There was no evidence to support the assertion that Mr Horrocks at any stage was acting as servant or agent of the second cross-respondent, and the contrary was acknowledged in pre-trial correspondence from Mrs Bethune to AAMA. Then at the commencement of the trial the respondents sought leave to discontinue the cross-claim against the first cross- respondent. They informed the Court that they did not want to proceed with the cross-claim at that stage but wished to preserve their right to do so later if so advised. In these circumstances the Court refused to give leave to discontinue. Mr Horrocks was in Darwin for the trial with counsel brought at considerable expense by him from Perth. After considering their position the respondents agreed to the cross-claim against Mr Horrocks being dismissed by consent. An argument as to costs then followed. Costs were awarded against Beechrow and Mr Bethune on an indemnity basis. The affidavit evidence filed before trial in support of the cross-claim indicated that it never had any prospect of success. Moreover, an allegation amounting to one of fraud had been made against Mr Horrocks, and was persisted in to the last moment, notwithstanding the absence of evidence. These special circumstances in my opinion justified an order for costs on an indemnity basis: see Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Others (1988) 81 ALR 397 and Colgate Palmolive Co. & Another v

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

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;

(ii) for any other purpose to an extent that will affect prejudicially the owner of the copyright; or

(Cc) by way of trade exhibiting the article in public;

if the importer knew, or ought reasonabiy 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." There is no doubt as to the purpose of the importation of the carpets by Beechrow. Each of the purposes described in paragraphs (a), (b) and (c) have been

established. The additional requirement of the section is

that the "importer knew or ought reasonably to have known" that the articles would, if they had been made in Australia by the importer, have constituted an infringement of the copyright. The requirement of knowledge is necessary for an article to be an infringing copy notwithstanding the absence of any express requirement of knowledge in the definition of "infringing copy" in s.10(1): see Law of Intellectual Property, S. Ricketson, The Law Book Company, 1984 at paras. 12.16-12.18 and Infrabrics Limited & Others v Jaytex Limited

"Knowledge" for the purposes of s.37, refers to notice of facts such as would suggest to a reasonable person having the ordinary understanding expected of persons in the particular line of business that a breach of copyright was being committed: Apple Computer Inc. & Anor v Computer Edge Pty Ltd & Another (1984) 53 ALR 225 at 238; Kalamazoo (Aust. ) Pty Ltd v Compact Business Systems Pty Ltd & Others (1985) 5 IPR 213 at 240 and R.C.A. Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123. By virtue of the Copyright Amendment Act 1991, s.3, it is no longer necessary to establish actual knowledge. Constructive knowledge is sufficient. Knowledge of the law is not required. It is sufficient that there be actual or constructive knowledge that intellectual property rights would be infringed, without knowing the precise nature of those rights: Star Micronics Pty Ltd and Anor v Five Star Computers Pty Ltd and Others (1990) 18 IPR 225 at 235-236. The knowledge of Mr Bethune is to be

imputed to Beechrow: see the authorities discussed in Beach Petroleum NL & Another v Johnson & Others (1993) 115 ALR 411 at 568 ff. I am not left in any doubt by the evidence that Beechrow through Mr Bethune knew or ought to have known at the time when the import of the carpets into Australia occurred that the making of the carpets which are exact reproductions of the artworks, if they had been made in Australia by Beechrow, would have constituted an infringement of copyright. Mr Bethune knew whilst he was at the carpet factory in Vietnam that the artwork came from the portfolios. The source of the artwork should have suggested to him that a breach of copyright would have been committed if the carpets were made in Australia. 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. In the case of the 115 carpets which are exact

reproductions of seven of the artworks, infringement plainly

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

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

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.

On many occasions during the course of the trial this carpet has been referred to by counsel as the alleged adaptation. As a use of the English language no criticism can be levelled at this description. However the term "adaptation" has a technical meaning in the Copyright Act. It is defined in paragraph 10(1). The defined meanings operate in relation to literary and musical works and in that context the expression is used in s.31(1)(a) which defines the exclusive rights attaching to a literary, dramatic or musical work. However the relevant prescription of the exclusive rights attaching to an artistic work appears in s.31(1)(b)

"31.(1) For the purposes of this Act, unless the contrary intention appears, copyright, in relation

(b) in the case of an artistic work, to do all or any of the following acts:

(iii) to include the work in a television broadcast;

includes the work to be transmitted to subscribers to a diffusion service."

It will be noted that the term "adaptation" is not used in

s.31(1)(b). The relevant enquiry in this case is not whether the disputed carpets are an adaptation but whether the carpets reproduce a substantial part of one of the artworks: see

In International Writing Institute Inc. v Rimila Pty Ltd & Another (1993) AIPC 91-035 Lockhart J said at p.39,746:

"Reproduction in a material form of a substantial part of a work in which copyright exists is determined by applying the test of substantial use of the features of the applicant's work in which copyright subsists: see Copinger on Copyright, 12th edition, para.472 and Krisarts SA v Briarfine Ltd (1977) FSR 557.

Though it is permissible to look to the quantity of what the respondent is alleged to have taken from the applicant's work, the test of substantial reproduction is essentially to look to the quality of what has been taken, although, depending on the

statement of the four tests of substantial copying is to be found in Ravenscroft v Herbert & New

English Library [1980] RPC 193 at 203, 205 and 207;

In Ravenscroft v Herbert & New English Library [1980] RPC 193 Brightman J in the passages referred to by Lockhart J observed that the first question is whether there has been copying, and then secondly whether the copying is substantial. In the present there can be no question that parts of the Wititj have been copied on to the snake carpet. The depiction of the tail portion of the snake, the rarrk, the

border and the colouring itself are all aspects of that

In determining whether the copying is substantial Brightman J accepted the submissions of counsel for the

defendants that there are four principal matters to be taken into account in deciding whether copying is substantial (at

"First, the volume of the material taken, bearing in mind that quality is more important than quantity; secondly, how much of such material is the subject - matter of copyright and how much is not; thirdly, whether there has been an animus furandi on the part of the defendant; this was treated by Page-Wood V.C. in Jarrold v. Houlston (1857) 3 K. & J. 708 as equivalent to an intention on the part of the defendant to take for the purpose of saving himself labour; fourthly, the extent to which the plaintiff's and the defendant's books are competing works."

Brightman J also cited with approval passages from Harman Pictures N.V. v Osborne [1967] 1 WLR 723, one of which is material to the present case where part of the respondent's case is that the image of the Wititj is common in many Aboriginal artworks and involves no originality. That

passage from Harman Pictures N.V. v Osborne at 732 reads:

"In the case of works not original in the proper sense of the term, but composed of, or compiled or prepared from materials which are open to all, the fact that one man has produced such a work does not take away from anyone else the right to produce another work of the same kind, and in doing so to use all the materials open to him. But as the law has been precisely stated by Hall v.cC. in Hogg v Scott, 'the true principle in all these cases is that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work, that is, in fact, merely to take away the result of another man's labour or, in other words, his property'."

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 & 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 design 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.

It is surprising in light of the evidence, that the argument that the snake carpet does not substantially reproduce the artwork has been maintained to the last, and even more surprising that the respondents have maintained that they are not in breach of the assurance they gave to AAMA following its letter of 10 December 1992 that carpets "which may bear some resemblance to artworks by your clients have been withdrawn from sale and manufacture". It is unbelievable that the respondents did not understand that the snake carpet was asserted to be one of the infringing copies by the applicants' case. A photo of the snake carpet had been forwarded to AAMA on 23 November 1992 by Mrs Bethune when she was seeking copyright approval as one of the carpets which was "more an extract of an Aboriginal painting". She could not have been in any real doubt then that reproduction was likely to be one requiring copyright approval. Later when the pleadings alleged a reproduction of the Wititj artwork or substantial parts thereof no request for further particulars of this allegation was made. The allegation could not have referred to anything but the snake carpet. Mr Bethune at one point in his evidence conceded that he knew the snake carpet was part of the case, but then resiled from that concession.

The applicants contend that the continued import and sales of the snake carpet is flagrant conduct relevant to the claim for

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

"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

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

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 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

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.

Beechrow did not seem to be in any real doubt that waterholes involved a copy of parts of the artwork when Mrs Bethune wrote to AAMA on 23 November 1992 as she attached a photo of the waterholes carpet to the AIS reproduction of the work. That photo appears to depict a carpet of a shape that accommodated the central feature of the artwork without distorting (by elongating) the design. The photo appears to show a carpet of the proportion of say 1.7m x 2.4m, or 1.3m x l.lm (carpet sizes that were ordered). Interestingly a comparison of the infill dot pattern in the area where an emu footprint appears close to the central site on the artwork is very similar in the photo - suggesting the simple expedient by the carpet designer of just removing the image of the footprint without modification of the surrounding infill. [In 2m x im waterholes carpets produced to the Court during the trial the infill in that part of the carpet had been slightly changed, as had the proportions of the pattern to suit a proportionately longer carpet. But the visual appearance of

the carpet remains fundamentally the same except on very close

For claims of infringement under s.37 to be made out by the importation of the snake, the green centre and the waterholes carpets it must be established that the importer, Beechrow, knew or ought reasonably to have known that the carpets would, if made in Australia by Beechrow, have constituted an infringement of the copyright. Notwithstanding the protestations by the respondents that they do not think the carpets are substantial copies of the artworks, and did not think this was being alleged until part way through the trial, I think, as a matter of probability, that Beechrow through Mr Bethune, realised from the outset that the artworks from which the carpets were derived were the subject of copyright, and that the carpets reproduced those artworks in substantial parts. But it is not necessary to go that far. Actual knowledge is not necessary. I am satisfied that Beechrow and Mr Bethune had constructive knowledge, that is knowledge of facts that would suggest to a reasonable person, particularly one about to engage in the business of distributing carpets in Australia, that a breach of the copyright law would be committed if the carpets were to be

In summary, I am satisfied that the import into Australia of all 246 carpets which the applicants allege to be

infringing reproductions of the artworks constituted

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