Copyright - Publication shortly after artist's death of book containing copyright works - Issue whether artist licenced the use of the works - Alleged oral licence.

Copyright Act 1968, s.36.

Counsel for the Applicant: D.K. Catterns and R. Cobden

Solicitors for the Applicant: Boyd House and Partners

Counsel for the Respondent: J.M. Ireland QC and J.V. Nicholas

1. The respondent, its servants and agents be restrained from reproducing, publishing, distributing, selling or offering for sale the book a copy of which is Exhibit D herein.

2. Within fourteen (14) days the respondents deliver to the applicant all copies of the said book in its possession, custody or control.

3. There be liberty to apply in connection with Order 2 as sought in the Amended Application.

4. The costs of the proceedings so far be reserved.

5. The matter be stood over for mention at 9.30am on Tuesday, 27 October 1992.

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

WILCOX J. By common consent Brett Whiteley was one of the most significant artists produced in Australia. He may well have been the contemporary artist best known to the general public. Mr Whiteley's sudden death, at the age of 53, between 13-15 June 1992, under circumstances that first (though erroneously) suggested that the cause was heroin abuse, excited enormous media coverage and popular interest. It is not surprising that, in this situation, a publisher should have been keen to put into print an inexpensive paperback book concerning the artist's life and work. That is what the respondent, Collins Angus and Robertson Publishers Pty Limited, did. The question raised by this proceeding is whether, in doing so, the respondent infringed the copyright in Mr Whiteley's works held by his estate. For the purpose of this proceeding, the estate is represented by the applicant, Anthony Patrick Clune, to whom special letters of administration were granted by the Supreme Court of New South Wales on 21 August 1992.

2. Pursuant to leave granted on 21 August 1992 by Sweeney J, an Application was made returnable before me on 25 August. On that day I made pre-trial directions and fixed the case for final hearing, on all issues but damages, on 24 September. On that day evidence was taken. On the following day, counsel indicated that they would prefer to put their submissions in writing but would wish a brief opportunity to speak to the submissions. This course was followed. I had the opportunity to consider the respondent's submissions during the course of Tuesday, 29 September, before sitting at 4pm to hear counsel's oral comments. At the conclusion of that sitting, being satisfied that the applicant was entitled to injunctive relief, I made orders restraining the respondent, its servants and agents, from reproducing, publishing, distributing, selling or offering for sale the relevant book. I also required that the respondent deliver up to the applicant within 14 days all copies of the book in its possession, custody and control. Ancillary orders dealt with liberty to apply, costs and the future conduct of the claim for damages. On 29 September I indicated that I would publish my reasons as soon as possible. These are my reasons.

3. In the year 1979 a publisher named Bay Books published a book entitled "Brett Whiteley". This was a biographical work written by Sandra McGrath. It was apparently written with the artist's co-operation and included reproductions of many of his works, and some of his writings, to that time. Many of the works were reproduced in full colour. The book was in a hard-cover, large page format; a handsome publication. Up to the present time, some 40,000 copies of this book have been sold.

4. In February 1989 three publishers, Collins Australia Pty Limited, Angus and Robertson Limited and Bay Books, merged to create Collins Angus and Robertson Publishers Pty Limited ("CAR"), the present respondent. One of the persons who moved to the new company from Collins was David John Tom Thompson, who became Publisher of Literature. Mr Thompson had known Mr Whiteley since about 1972 and been a friend from 1979. Whilst at Collins Mr Thompson had been responsible for a series of paperbacks called the "Imprint" series. Mr Whiteley had allowed one of his works to be used in the cover design of one of them, "Women's Erotica". Mr Thompson and Mr Whiteley had also been associated in a proposal for a book, to be published by The Craftsman's Press Pty Limited, which was provisionally entitled "Brett Whiteley - The last Ten Years Art". This was intended to be a substantial treatment of Mr Whiteley's work after 1979, the text being written by Mr Thompson. Although the project got as far as a formal publishing agreement, it seems that little (if any) of the text was ever written. The work was abandoned in 1990.

5. According to Mr Thompson, at an executive meeting held in February 1989, apparently shortly after the merger, he suggested that Ms McGrath's 1979 Whiteley work could be reprinted in paperback as one of the Imprint series. He testified that, in about March 1989, he put this suggestion to Mr Whiteley. Mr Whiteley commented: "It's a good idea". Mr Thompson said that Mr Whiteley went on to say: "They would get me another market. I like the idea of school kids being able to buy the book. It would have to be under $20.00. You could bring it out in time for a show".

6. Despite this alleged encouraging response, Mr Thompson did not immediately advance the proposal. The next step deposed to by him did not occur until August 1991; although, in the meantime, Whiteley works were used on two other Imprint books, a "corrected edition" of D H Lawrence's "Kangaroo" and "Tokyo No Hana" by Robert Allen.

7. About 24 August 1991, according to Mr Thompson, he received a telephone call from Mr Whiteley. As a result, he visited his studio. They had a conversation about some of the books being published in "Imprint Lives". Mr Thompson again suggested "publishing Sandra's book into Imprint Lives". He said that Mr Whiteley, who was flicking through a copy of the 1979 publication, said:

"Yes, but what about the birds, the Paris show and the portraits.

Sandra's book doesn't even have the Archibald work. It stops in 1978

and some of my best shows are not in there."

8. Mr Thompson said that, when Mr Whiteley came to page 205 of the 1979 publication, he said: "That's the cover". On that page is a detail from "Self Portrait in the Studio", a work with which Mr Whiteley won both the Archibald and Sulman prizes in 1977. The detail includes part of the artist's face, reflected in a mirror held up against a background consisting of studio objects. Mr Thompson said that Mr Whiteley commented: "I designed this book (the 1979 publication) page by page". He responded:

"It's not an art book. It's a paperback about your life. We could get

Sandra to update it and correct the little fiddly things that have

always got on your goat. We could have 50 black and white paintings and

photographs."

9. Mr Thompson testified that Mr Whiteley then said: "What about the catalogues?" and handed him catalogues for four exhibitions of his work. He said that the conversation continued:

WHITELEY: 'You've got to show this side to my art. If it's

going to be black and white it's got to be clear.

It's got to be a showing of my draftsmanship.'

MYSELF: 'I'll make you a dummy cover and we'll talk about it.'

WHITELEY: 'I'll talk to Sandra about it.'

MYSELF: 'We should do Lloyd, we should do Donald (meaning

Donald Friend) and we should do you. I want to

publish my favourite artists.'

WHITELEY: 'Go ahead'.

The reference to "Lloyd" was to Lloyd Rees. Mr Thompson had already decided to republish in the Imprint series a 1985 autobiography of this artist.

10. Once again, notwithstanding the encouraging conclusion to this conversation, nothing happened for some time. During April 1992 Mr Thompson spoke to Mr Whiteley about the cover of "Kangaroo". He testified that he said during this conversation: "We're going to do the Rees book next February. Why don't I contact Sandra and get her to update the book?". Mr Whiteley said he was going to Thirroul and would call when he got back.

11. Mr Whiteley did not call until 26 May. Mr Thompson said he arranged to meet him for coffee on the following Friday, 29 May. He testified that he took with him a mock-up, trimmed to paperback size, of the previously selected detail. They discussed the mock-up. Mr Whiteley said: "Sandra's name should go at the bottom of the panel for best effect". (As published, Ms McGrath's name was at the top). Mr Thompson said there would be a 16 page section "consisting mostly of photographs because there have been all those fantastic photographs that no-one has ever seen". He testified that Mr Whiteley responded by naming five photographers and saying: "There's tonnes of photographs of me". There was talk about other inclusions. Mr Thompson spoke about bringing it out "in February", presumably February 1993.

12. Mr Thompson said that he had another meeting with Mr Whiteley on 9 June. This was the last time the two men met. Again they met over coffee. Mr Thompson said that he showed Mr Whiteley the cover mock-up, developed since the previous meeting by imprinting Mr Whiteley's signature over part of the picture. Mr Thompson said: "There is a publishing committee meeting this week, so we are going ahead". Nothing was said about the content of the book. The remaining reported conversation concerned "Kangaroo".

13. A CAR publishing committee meeting was held on the following day, 10 June. Mr Thompson said in evidence that he presented the cover mock-up. The minutes of the meeting include the following item under Mr Thompson's name:

"IMPRINT LIVES: ART (ex Bay)

Brett Whiteley

Fred Williams etc

Great potential, meeting very enthusiastic."

14. Mr Thompson said in evidence that he learned of Mr Whiteley's death on 16 June. On the following day, Phillipa Sandall, the Non-Fiction Publisher of CAR, wrote to Ms McGrath enclosing a letter from Fiona Inglis, the Literature Editor. Ms Inglis stated that the company hoped to publish her 1979 book in the Imprint series on 20 July. Ms Inglis said that "(a)lthough we do not plan to update the text at all, it would be wonderful to include some sort of postscript or note from you at the end". She sought Ms McGrath's advice about the illustrations to be included and suggested a meeting. Ms Sandall also pressed for an early meeting.

15. One week after Mr Thompson learned of Mr Whiteley's death, he wrote a letter to Mr Whiteley's daughter, Arkie, and former wife, Wendy. The letter is an unusual mixture of condolence and business. Its present relevance is that the applicant argues that it was an attempt to "set up" the recipients by informing them at an early stage about the new book, but under such circumstances that they were unlikely to think of legal action in response; in effect, to present the new book as a fait accompli, as if there was no doubt about it having been previously approved. The letter read:

"I was shocked to hear of Brett's death and wish to convey our deepest

sympathies to you both at this time.

I was with Michael Leunig at the time, discussing his new book of

poetry, when we heard, and I am enclosing a copy of Leunig's poem from

last Sunday's Age.

While Sandra McGrath's book on Brett goes into paperback later this year

(along with Lloyd Rees and Fred Williams), I do feel that there should

be a proper biography on Brett, commissioned as you might suggest. When

you are ready please give me a call and let's talk about it.

It is as much as sad day for Sydney, as for those who have known him."

16. It will be noted that the February 1993 publication date, mentioned to Mr Whiteley on 29 May, had already become "later this year". Steps were being taken to ensure that it was not too much later. In his affidavit Mr Thompson described what happened:

"24. Immediately following Brett Whiteley's death, all remaining stocks

of the 1979 publication were sold. This happened within a few days. At

that time there was no other publication on the market concerning the

life and work of Brett Whiteley. It was therefore decided to go ahead

with the 1992 publication more quickly than had originally been planned.

Work was undertaken by Sandra McGrath who wrote further text for the new

edition. Phillipa Sandall and Fiona Inglis of CAandR also worked on the

book. The seven items referred to in Part 2 of the Schedule to the

Statement of Claim were added. These transparencies, photographs and

writings were taken from the Brett Whiteley file maintained at the

offices of CAandR. This file had been acquired from Bay Books at the time

of the merger. It contained all the transparencies used in the 1979

publication as well as a number of other photographs and transparencies

provided by Brett Whiteley which had not been included in the 1979

publication. I personally went though the file and selected the

additional items which were included in the 1992 publication from that

file.

25. Fiona Inglis contacted the Art Gallery of New South Wales to obtain

permission to use the painting entitled 'Self Portrait in the Studio'

(1976) on the front cover of the 1992 publication. The original

painting hangs in the Art Gallery of New South Wales and it is my

experience that it is the invariable practice of the publishing industry

to obtain permission from the gallery which owns the painting which is

intended to be reproduced on the cover of a book prior to publication.

The application to the Art Gallery of New South Wales was made in this

case in accordance with that practice."

17. Some explanations are necessary. First, Part 2 of Schedule A to the Statement of Claim lists seven works, not reproduced in the 1979 book, which are included in the 1992 paperback. The applicant claims copyright in these seven items but the claim was not pressed in connection with one item, a photograph. Apart from the photograph, and extracts from Mr Whiteley's writings published in an 11-page "Epilogue" added by Ms McGrath to cover the period from 1979 until the artist's death, the Part 2 items are original Whiteley artistic works. It is common ground that Mr Whiteley's estate owns the copyright in all these works, as well as the works reproduced in the 1979 publication which were reproduced again. Except for the cover picture, all the works reproduced in the paperback were printed in black and white.

18. As Mr Thompson explained in para.25, the approach to the Art Gallery of New South Wales concerning "Self Portrait in the Studio" arose out of the fact that the gallery owned the original painting. It did not hold the copyright; once again, it is common ground that copyright was held by the artist's estate. But it is apparently the gallery's practice, in cases where it owns the original work, not to consent to a reproduction of it until the copyright owner has agreed. In the present case, this practice gave rise to a curious sequence of events.

19. As Mr Thompson said, Ms Inglis was the person who contacted the Art Gallery. According to an affidavit of Helen Lucy Campbell, a photographic services officer employed by the gallery, Ms Inglis contacted her on 16 June. She stated the intention of CAR to publish "another edition of Sandra McGrath's book on Brett Whiteley" and sought permission to use "Self Portrait in the Studio". Ms Campbell faxed her an application form. It was returned, completed, on 17 June. On 18 June Ms Inglis faxed a letter to Ms Campbell. It was headed "Re Brett Whiteley" and read:

"Following is a letter from Brett Whiteley regarding permission granted

to Tom Thompson (publisher of the above title) to use any NSW Art

Gallery Brett Whiteley paintings. This will include the cover painting

about which I spoke to you yesterday, and a number of other which will

be reproduced, in black and white inside the book (details a.s.a.p).

Tom just gave me this letter today so I hope you haven't done too much

research on chasing permission. I still need details of how it should

be credited."

20. The enclosure was a copy of a handwritten letter signed by Mr Whiteley. It was undated and addressed to Barry Pearce, Senior Curator of Australian Art at the gallery. It read:

"Dear Barry

Please allow Tom Thompson copyright for any or all pictures for the new

book that is in the Art Gallery of N.S.W.

Can you please lend ecktachrome for Archibald winner Sulman prize

picture also Patric (sic) White and the new 'Autumn'."

21. Shortly afterwards Ms Campbell went on leave. Ms Inglis' request was taken over by Kirsten Dunlop, a curatorial assistant. On 22 June 1992 Ms Dunlop faxed a message to Ms Inglis thanking her "for your letter and copy of permission". She enclosed caption instructions and an invoice for the reproduction permission fee. Ms Inglis responded the same day, enclosing for approval a photocopy of the cover rough. Ms Dunlop took it to Mr Pearce. At this point the permission process came unstuck. Mr Pearce instructed Ms Dunlop to telephone Ms Inglis concerning the matter of copyright. Ms Dunlop did so, informing her: "There is a problem with your permission letter. You should contact Australian Galleries as the existing copyright permission is invalid".

22. Australian Galleries is a Sydney commercial art gallery. It has, apparently, sold significant numbers of Mr Whiteley's works. But nobody in this case suggests that it had any rights in relation to "Self Portrait in the Studio"; in particular, no copyright interest. It appears that CAR did not contact Australian Galleries. The company simply went ahead and published the book without any further request for permission for the cover, or any of the other works, from any person.

23. A few days after the exchange between CAR and the Art Gallery of New South Wales, on 26 June, Boyd House and Partners, solicitors, published a newspaper advertisement asking anyone who knew the whereabouts of any will or testamentary document of Mr Whiteley to communicate with them. Mr Thompson immediately faxed a letter to the solicitors enclosing a copy of Mr Whiteley's handwritten letter to Mr Pearce. Mr Thompson explained that this letter had been sent to Mr Pearce at the Art Gallery of New South Wales in early 1990. A day or so later Mr Thompson telephoned Boyd House and Partners and had a conversation with either Mr Marx or Mr Boyd during which he mentioned publication of the paperback adaptation of Ms McGrath's book.

24. The publication target date of 20 July was not achieved. But the book was completed, ready for publication, by about 18 August 1992. It seems that it was not until that time that the members of Mr Whiteley's family became aware of it. The letter of condolence from Mr Thompson may not have been read when received. A family friend, Christopher Kuhn, who assisted in sorting out Mr Whiteley's belongings and tidying his studio, said in evidence:

"When Brett died we received hundreds of letters of condolence and no

one paid much attention to any of them. I found this later in August.

I don't know if anyone had read it or not. I certainly didn't remember

it."

25. Ms Arkie Whiteley had returned to England about 20 July. Nonetheless, matters moved swiftly. On 20 August 1992 a letter of demand was sent to CAR. On the following day Clayton Utz, solicitors, responded on behalf of CAR. They stated that, in 1979, "Mr Whiteley gave our client permission to reproduce for the purpose of publication all works made by him and held by the Art Gallery of New South Wales." On 24 August, the proceeding having been commenced in the meantime, Boyd House and Partners asked for copies of the documents evidencing that permission. Clayton Utz responded by referring to a 1978 letter from Mr Whiteley to Bay Books and the original manuscript of the 1979 publication. It is evident that the solicitors were at cross-purposes. Understandably, given the shortness of time for them to obtain instructions, Clayton Utz erred in their understanding of the "Dear Barry" letter. They apparently then thought that the letter was written in 1979. It is now common ground that it was written much later (1989 or 1990), in connection with the work proposed to be published by The Craftsman's Press. But, although the confusion has been cleared up, the applicant suggests that the exchange of correspondence is nonetheless important. According to counsel, it shows that, even at this late stage, the respondent did not claim that Mr Whiteley himself had given permission for the reproduction of any of his works; counsel say this is a matter which ought to be borne in mind in evaluating the respondent's present claim to that effect.

26. As a result of the sensible attitude of counsel on both sides, there is ultimately considerable common ground between the parties. In the first place, the parties agree that, at all relevant times, either Mr Whiteley or his estate owned the copyright in the various artistic and written works created by him that are reproduced in the book. It is agreed that the publication of the book constitutes an infringement of that copyright if effected without the licence of the copyright owner: see Copyright Act 1968, s.36(1). The applicant bears the onus of proving the absence of a licence: see Avel Proprietary Limited v Multicoin Amusements Proprietary Limited [1990] HCA 58; (1990) 171 CLR 88 at 94-95. But the respondent accepts that, in the circumstances, this is of little moment. It is common ground that no licence has been given on behalf of the estate. It could not have been; so far, there has been no general grant of administration. The issue is whether Mr Whiteley gave an appropriate licence. The respondent does not suggest that he gave it a written licence. Despite Mr Thompson's flourishments of the "Dear Barry" letter in the period immediately after Mr Whiteley's death, the respondent concedes that this letter has nothing to do with the subject publication, that it referred to the art book proposed to be published by The Craftsman's Press. The respondent further accepts that there was nothing said by Mr Whiteley, in the nature of a licence to use his copyright works for the purposes of this publication, except the things attributed to him by Mr Thompson. The respondent argues that those things establish an oral licence. But it accepts that if they, or such part of them as the Court finds to have been said, are not adequate for that purpose, the applicant is entitled to succeed.

27. In relation to the conversations reported by Mr Thompson, counsel for the respondent put three general submissions. First, counsel say that the conversations should be construed against the background of the 1979 publication, made with Mr Whiteley's approval and assistance, and the friendship between Mr Whiteley and Mr Thompson. Second, counsel point out that no particular formality is required for the grant of a licence under the Copyright Act. In Computermate Products (Aust) Pty Ltd v Ozi-Soft Pty Ltd (1988) 20 FCR 46 at 49 a Full Court said that "the expression 'without the licence of the owner of the copyright' in s.37 (of the Act) was simply a reference to the absence of the owner's 'consent' or 'permission' or 'licence' as interchangeable terms". It follows from these first two contentions, say counsel for the respondent, and this is the third submission, that I should approach the matter, not by making a contractual analysis, but by making "an enquiry related to the existence or not of consent or authority to reproduce the works for the purpose of the 1992 publication".

28. I accept these submissions. But, as counsel agree, it still remains necessary for me, first, to determine how much of Mr Thompson's evidence I am able to accept and, second, to decide whether that evidence goes far enough to constitute an oral licence.

29. In relation to the first matter, it is trite to say that evidence of conversations between a living witness and a dead person should be scrutinised with particular care, especially where there was no occasion for the dead person to record his version of them before his death. Of course, that is not to say that such evidence cannot be true; it obviously may. But it does mean that any matter adversely affecting the credit of the witness has special importance; the witness cannot be refuted in the usual way.

30. In the present case, counsel for the applicant put several submissions concerning Mr Thompson's credit. The most significant of them arises out of Ms Inglis' approach to the Art Gallery of New South Wales. Mr Thompson conceded that the "Dear Barry" letter had no relevance to the book concerning which Ms Inglis approached the Art Gallery of New South Wales. Yet it was sent to the gallery by Ms Inglis. Mr Thompson said this was done at his suggestion. Ms Inglis' letter, which is quoted above, specifically linked the letter to the subject book. Perhaps this was her error; Mr Thompson claimed in evidence to have told Ms Inglis to explain to the Art Gallery that the letter related to a different book. But, if that was so, it is difficult to see why Mr Thompson referred Ms Inglis to it at all. It was plainly irrelevant. Mr Thompson said that he was in Melbourne at the time and that he "referred her to my file which had a copy of this letter within it and said, send this to the Art Gallery and let them know that they already have it on file". When he was asked by Mr Catterns, counsel for the applicant, what was the point of this, given that the permission was for a different book, Mr Thompson said he "suggested this should be sent over to them as the only formal permission that - that I had personally been given regarding Brett Whiteley and that it was on file". At another point of his evidence, he said that the letter would remind Mr Pearce of the nature of his relationship with Mr Whiteley.

31. None of this makes sense to me. The question for the Art Gallery was whether the copyright owner agreed to the reproduction of part of "Self Portrait in the Studio" on the cover of this particular book. Whether Mr Whiteley had previously been willing to allow Mr Thompson to use his works for another publication was irrelevant, as was the nature of the general relationship between Mr Thompson and Mr Whiteley. Mr Thompson is an intelligent man and an experienced publisher. I think he would have understood the irrelevance of the letter. I regret to say that the only inference I can draw is that Mr Thompson set out to mislead the Art Gallery into thinking that the "Dear Barry" letter constituted an authority by Mr Whiteley for him to use "Self Portrait in the Studio" for the purposes of the subject book. He probably would have succeeded, if the matter had not been referred to Mr Pearce before the final approval issued.

32. I do not propose to canvass all counsel's criticisms of Mr Thompson. But I mention one other matter because it was Mr Thompson's claim, in effect, that Mr Whiteley gave him carte blanche to include whichever of his works he (Mr Thompson) wished in the subject book. In cross-examining Mr Thompson, Mr Catterns challenged that claim, suggesting that, if it were so, it would be a unique event in his publishing career; that he had never had an artist give him carte blanche as to the works to be included in a book. Mr Thompson denied this suggestion. As an example of a carte blanche approval, he instanced his Lloyd Rees Imprint publication, "Peaks and Valleys". Mr Thompson said that all images were given directly to the publisher's editor at Collins and that the artist did not see the book until it was in final form three weeks before publication.

33. The above evidence was given before the luncheon adjournment. After lunch, Mr Catterns returned to the subject. He showed to Mr Thompson copies of correspondence between Collins and Ms Jan Rees, the artist's daughter-in-law and secretary. The first letter enclosed some transparencies and photographs, together with a statement of acknowledgments for the work as a whole. Ms Rees said: "We look forward to seeing the colour proofs when they are available" and gave a direction about captions. In reply, Susan Tomnay, Managing Editor of Collins, referred to two additional paintings "we'd like to use" and said "I hope you agree with our choices - could you let me know as soon as you can how Lloyd feels about it. Once we've had approval we'll start work on the books". There was a later letter from Ms Tomnay reporting on the black and white photographs and seeking Ms Rees' comments "on the colour pix" and cover design. In the light of these letters, it was absurd for Mr Thompson to quote this book as a case of carte blanche authority. Although the relationship between the artist and the publisher was apparently very amicable, it is apparent that Mr Rees was closely involved in the preparation of the book.

34. Having in mind these examples of Mr Thompson's unreliability, it is difficult to put great faith in his account of his conversations with Mr Whiteley. I accept that he discussed with Mr Whiteley the updating of the Sandra McGrath book and its republication in the Imprint series. I also accept that he and Mr Whiteley discussed the cover design and that Mr Whiteley selected the painting detail which was in fact used. There is evidence from Ms Sandall that the cover mock-up was presented by Mr Thompson to the publishing committee meeting on 10 June. If the mock-up was in existence at that time, it would have been natural for Mr Thompson to show it to Mr Whiteley. So I accept that he did so. Accordingly, I accept that there was agreement on the cover.

35. However, I am not persuaded that Mr Whiteley and Mr Thompson reached any final agreement on the contents of the book; or, alternatively, that Mr Whiteley gave Mr Thompson authority to include whatever works he wished. I do not doubt that the two men discussed the contents of the book in general terms. It would have been natural for them to do so. Mr Whiteley may have made some of the comments attributed to him by Mr Thompson. But these are mostly in general terms. They assume that there will later be a process of selection of particular works; and, perhaps, discussions as to the way those works will be presented. In relation to the argument of carte blanche licence, Mr Thompson does not expressly attribute to Mr Whiteley so wide an authority. The argument really requires the Court to read into the conversations an implication that Mr Whiteley left to Mr Thompson the power of decision concerning all matters not specifically decided in their discussions.

36. I cannot accept this view of the case. I find it difficult to believe that any artist would leave to a publisher the choice of the artistic works to be included in a publication. This is even less likely in the case of someone like Mr Whiteley who (on Mr Thompson's own evidence) was conscious of his public reputation and anxious to communicate effectively with his audience. The period after 1979 represented a substantial part of Mr Whiteley's professional career, during which he held several successful exhibitions and won many important prizes. He would surely have been interested in the selection of work for those years.

37. During the course of the hearing I raised the matter of royalties under an oral licence. Mr Thompson made no suggestion that anything was said, between him and Mr Whiteley, about payment; yet the respondent claims that their discussions amounted to an immediately operative permission to use in the book all the copyright works it contains. It seemed to me that, if this was so, there would be a gratuitous licence - something I thought unlikely to have been intended by Mr Whiteley. Counsel for both parties agreed with this analysis of the position, although counsel for the respondent said it was not unlikely that Mr Whiteley would have been willing to grant a gratuitous licence because he wished his work to reach a new market. I think that is fanciful. People who seek a new market usually do so in the hope of financial reward in that market. Moreover, Mr Thompson was a friend of Mr Whiteley. He would surely not have wished to put him into the position of authorising the use of his works without any prospect of payment.

38. As I say, I accept that there were discussions between Mr Thompson and Mr Whiteley during which Mr Whiteley endorsed the idea of publishing in the Imprint series an updated version of Ms McGrath's work; and the cover was agreed. But I think that, otherwise, the discussions were at a preliminary stage. Publication was still a long way off. The tenor of the conversations is consistent with a common expectation that there would be further talks as the book developed. I think Mr Whiteley would have expected to be involved, not only in the choice of the works to be included in the book, but also in its design. I also think that he would have expected payment of a royalty, and that a formal contract providing a royalty would be presented for his signature before the work was published. In my opinion, there is no basis for imputing to him an intention to be bound before these things were done.

39. In the normal course, I presume, these events would have transpired. But they were prevented by Mr Whiteley's death; an event which, at the very time it rendered the usual steps impossible, made publication even more commercially attractive. In this situation, as it seems to me, CAR took a decision to proceed with publication regardless of copyright problems. CAR may have thought it likely that, in the immediate aftermath of Mr Whiteley's death, there would be no legal personal representative available, and organised enough, to prevent distribution of the book. If that calculation was made, it turned out to be wrong. But in the meantime, thousands of copies of the book were sold. CAR's action was a blatant infringement of copyright. The circumstances clearly justified injunctive relief. It was for those reasons that I made the orders of 29 September.

40. One of the orders made on 29 September was for the matter to stand over for mention at 9.30am on Tuesday, 27 October. Unless, in the meantime, there is an agreement between the parties concerning damages, I will on that day give directions regarding the trial of that issue.