Re Commissioner of Taxation v Richard Murray [1990] FCA 69; 90 Atc 4182

Re Commissioner of Taxation v Richard Murray [1990] FCA 69; 90 Atc 4182 - FCA 1990 case summary — Zoe

[14]

"The true test, I think, is whether the

author, in making the article in which

copyright is alleged to subsist, was applying

his skill and taste to its production with

the main object of creating an article which,

even if it be utilitarian, nevertheless will

have a substantial appeal to the aesthetic

tastes of those who observe it. Put another

way, it may be said that the test is whether

the author was, in creating the article,

cultivating one of the fine arts with the

main object of appealing to the aesthetic

tastes of those who view it, provided that

the expression 'the fine arts' is given the

wide meaning of any application of skill and

taste to the production of articles which are

beautiful in themselves or which have an

appeal to aesthetic taste. The emphasis is

thus upon the object of the author in

creating the work, rather than on the

reaction of the viewer to the completed work,

for it is common place in copyright law that

it is immaterial whether the work has any

merit: Walter v. Lane (1900) AC 539, per

Lord Halsbury, L.C., at p 549. In stating

that the emphasis is on the object of the

author, I do not desire to be taken as saying

that the sole test of whether the work of a

craftsman is a work of artistic craftsmanship

is the intention or object of the craftsman

at the time he made the work. As a general

rule, the court adjudicating on the matter

will apply a purely objective test by an

examination of the article itself. When,

however, as in this case, such an objective

test may be thought to deny that the work is

one of artistic craftsmanship, and it is

sought to establish the contrary, the object

of the creator of that work must, in my view,

play a dominant part in the resolution of the

question. The best evidence concerning that

is the evidence of the creator of the work

himself, although, if he were dead, I am

inclined to think that evidence from

qualified viewers of the work that it had an

aesthetic appeal to them may be some evidence

from which a court could hold that the

creator of the work intended, when he made

it, that it should have such an appeal. But

evidence that a particular section of the

community on viewing the work found that it

appealed to their aesthetic emotions cannot

be a ground for ascribing copyright to that

work if it is clear that its author had no

such object in view when he created it."

[16]

"The word 'artistic' is not an easy word to

construe or apply not only because it may

have different shades of meaning but also

because different people have different views

about what is artistic. One may have a word

which substantially everyone understands in

much the same way. Recently we had to

consider such a word - 'insulting': Cozens v.

Brutus [1972] UKHL 6; (1973) A.C. 854. Then the matter can

and, indeed, must be left to the judge or

jury for further explanation will confuse

rather than clarify.

But here two questions must be determined.

What precisely is the meaning of 'artistic'

in this context and who is to judge of its

application to the article in question?

There is a trend of authority with which I

agree that a court ought not to be called on

to make an aesthetic judgment. Judges have

to be experts in the use of the English

language but they are not experts in art or

aesthetics. In such a matter my opinion is

of no more value than that of anyone else.

But I can and must say what in my view is the

meaning of the word 'artistic'.

I think we must avoid philosophic or

metaphysical argument about the nature of

beauty, not only because there does not seem

to be any consensus about this but also

because those who are ignorant of philosophy

are entitled to have opinions about what is

artistic. I think that by common usage it is

proper for a person to say that in his

opinion a thing has an artistic character if

he gets pleasure or satisfaction or it may be

uplift from contemplating it. No doubt it is

necessary to beware of those who get pleasure

from looking at something which has cost them

a great deal of money. But if

unsophisticated people get pleasure from

seeing something which they admire I do not

see why we must say that it is not artistic

because those who profess to be art experts

think differently. After all there are great

differences of opinion among those who can

properly be called experts.

It is I think of importance that the maker or

designer of a think should have intended that

it should have an artistic appeal but I would

not regard that as either necessary or

conclusive. If any substantial section of

the public genuinely admires and values a

thing for its appearance and gets pleasure or

satisfaction, whether emotional or

intellectual, from looking at it, I would

accept that it is artistic although many

others may think it meaningless or common or

vulgar."

[28]

16. I am in agreement with propositions (i), (ii) and (iii) but I have some reservation in relation to the way in which propositions (iv) and nv) are phrased. i think that the intention of the creator must be all important. I think this is established by the circumstance that, whether one is considering the matter in the context of copyright law or revenue law, the article will either be an artistic work or a work of art from the moment it comes into existence. It will not become a work of art at a later point of time if it is not a work of art from the moment it comes into existence. At that time many works of art will not have been seen by anyone except their creator. In any event, one would not attribute to an article the quality of a work of art if its creator did not intend that it should have that quality. Nevertheless I do not think that objective considerations are without substantial importance and significance. It is by making a judgment of the thing itself, of what it purports to be, that one usually determines whether it is a work of art or not. This is a matter, notwithstanding the wide range of objects which are displayed in the art galleries of the world, which occasionally vexes the minds of distinguished connoisseurs of art. But it is the way in which one is struck by a particular object which will very often determine whether or not an object is properly regarded as a work of art. In borderline cases it may be appropriate to inquire of the creator what his or her intention was. In those cases one's own objective reaction to the article itself may provide a check against accepting, for example, the gimmick referred to (pp 92, 94) by Lord Simon in his speech in the Restawile case as a work of art. More than this I do not think one can say because the more one says the more one substitutes other and different words for what is a plain English expression. If this happens, one is likely to be led away from giving to that expression its true meaning.

[71]

"(1) Subject to sub-section (3), in the

interpretation of a provision of an Act, if any

material not forming part of the Act is capable of

assisting in the ascertainment of the meaning of

the provision, consideration may be given to that

material -

(a) to confirm that the meaning of the provision

is the ordinary meaning conveyed by the text

of the provision taking into account its

context in the Act and the purpose or object

underlying the Act; or

(b) to determine the meaning of the provision

when -

(i) the provision is ambiguous or obscure;

or

(ii) the ordinary meaning conveyed by the text

of the provision taking into account its

context in the Act and the purpose or

object underlying the Act leads to a

result that is manifestly absurd or is

unreasonable."

(2) Without limiting the generality of sub-section

(1), the material that may be considered in

accordance with that sub-section in the

interpretation of a provision of an Act includes -

(a) all matters not forming part of the Act that

are set out in the document containing the

text of the Act as printed by the Government

Printer;

(b) any relevant report of a Royal Commission, Law

Reform Commission, committee of inquiry or

other similar body that was laid before either

House of the Parliament before the time when

the provision was enacted;

(c) any relevant report of a committee of the

Parliament or of either House of the

Parliament that was made to the Parliament or

that House of the Parliament before the time

when the provision was enacted;

(d) any treaty or other international agreement

that is referred to in the Act;

(e) any explanatory memorandum relating to the

Bill containing the provision, or any other

relevant document, that was laid before, or

furnished to the members of, either House of

the Parliament by a Minister before the time

when the provision was enacted;

(f) the speech made to a House of the Parliament

by a Minister on the occasion of the moving by

that Minister of a motion that the Bill

containing the provision be read a second time

in that House;

(g) any document (whether or not a document to

which a preceding paragraph applies) that is

declared by the Act to be a relevant document

for the purposes of this section; and

(h) any relevant material in the Journals of the

Senate, in the Votes and Proceedings of the

House of Representatives or in any official

record of debates in the Parliament or either

House of the Parliament."

[81]

"In my opinion, the words 'artistic' and

'craftsmanship' each refer to some quality in the

acts performed by the maker or author of the

article in which copyright is alleged to subsist in

the course of performing the physical operation of

making that article as distinct from the earlier

cogitation and thought which produced the idea upon

which the work was based. The true test, I think,

is whether the author in making the article in

which copyright is alleged to subsist, was applying

his skill and taste to its production with the main

object of creating an article which, even if it be

utilitarian, nevertheless will have a substantial

appeal to the aesthetic tastes of those who observe

it. Put another way, it may be said that the test

is whether the author was, in creating the article,

cultivating one of the fine arts with the main

object of appealing to the aesthetic tastes of

those who view it, provided that the expression

'the fine arts' is given the wide meaning of any

application of skill and taste to the production of

articles which are beautiful in themselves or which

have an appeal to aesthetic taste. The emphasis is

thus upon the object of the author in creating the

work, rather than on the reaction of the viewer to

the completed work, for it is common place in

copyright law that it is immaterial whether the

work has any merit: Walter v. Lane 1900 AC 539,

per Lord Halsbury, LC, at p 549. In stating that

the emphasis is on the object of the author, I do

not desire to be taken as saying that the sole test

of whether the work of a craftsman is a work of

artistic craftsmanship is the intention or object

of the craftsman at the time he made the work. As

a general rule, the court adjudicating on the

matter will apply a purely objective test by an

examination of the article itself. When, however,

as in this case, such an objective test may be

thought to deny that the work is one of artistic

craftsmanship, and it is sought to establish the

contrary, the object of the creator of that work

must, in my view, play a dominant part in the

resolution of the question. The best evidence

concerning that is the evidence of the creator of

the work himself, although, if he were dead, I am

inclined to think that evidence from qualified

viewers of the work that it had an aesthetic appeal

to them may be some evidence from which a court

could hold that the creator of the work intended,

when he made it, that it should have such an

appeal. But evidence that a particular section of

the community on viewing the work found that it

appealed to their aesthetic emotions cannot be a

ground for ascribing copyright to that work if it

is clear that its author had no such object in view

when he created it."

At a glance

Court

Decision date

Before

Source

Judgment (112 paragraphs)

Parties

Legislation Cited (32)

Cases Cited (4)

Re Commissioner of Taxation v Richard Murray [1990] FCA 69; 90 Atc 4182 (15 March 1990)