Thomas, Harold Joseph v Brown, David George & Anor [1997] FCA 215

Thomas, Harold Joseph v Brown, David George & Anor [1997] FCA 215

The court found, on the balance of probabilities and based on the totality of the evidence, that Harold Joseph Thomas is the author of the artistic work being the design of the Aboriginal flag, and the owner of copyright subsisting in that design. Competing claims by other parties lacked consistency, credibility, and corroboration. Declarations for authorship and ownership are appropriate; defences under Division 8 of Part III of the Copyright Act 1968 do not bar granting this relief.

Jurisdiction
Australia
Judgment Date
09 April 1997
Procedural Posture
Application for Declaratory Relief / Final Judgment
Outcome
Declarations granted in favour of Mr Thomas; application by respondents dismissed.
Legal Topics
['copyright Ownership' 'artistic Works' 'authorship of Aboriginal Flag' 'overlap Between Copyright and Designs Acts']
['intellectual Property' 'copyright'] ['copyright Ownership' 'artistic Works' 'authorship of Aboriginal Flag' 'overlap Between Copyright and Designs Acts']

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Procedural Posture

Application for Declaratory Relief / Final Judgment

Legal Issues

  1. 1 ['Who is the author and copyright owner of the artistic work being the design of the Aboriginal flag?' 'Did anyone other than Mr Thomas (namely Mr Brown or Mr Tennant) design the Aboriginal flag?' "Does the overlap between copyright and designs legislation affect Mr Thomas's entitlement to copyright ownership and relief?"]

Ratio Decidendi

The court found, on the balance of probabilities and based on the totality of the evidence, that Harold Joseph Thomas is the author of the artistic work being the design of the Aboriginal flag, and the owner of copyright subsisting in that design. Competing claims by other parties lacked consistency, credibility, and corroboration. Declarations for authorship and ownership are appropriate; defences under Division 8 of Part III of the Copyright Act 1968 do not bar granting this relief.

Court Disposition

Declarations granted in favour of Mr Thomas; application by respondents dismissed.

Orders

  • ['(a) It is declared that Harold Joseph Thomas is the author of the artistic work being the design for the flag described in Schedule 1 to the proclamation dated 27 June 1995 under s.5 of the Flags Act 1953 and published in the Commonwealth of Australia Gazette No. S259 of 14 July 1995, known as "the Aboriginal...