Swarbrick v Burge [2004] FCA 813

Swarbrick v Burge [2004] FCA 813

The Plug, the Moulds, the hull and deck Mouldings, the first JS 9000 yacht, and the Drawings are artistic works for which copyright subsists. The Plug, Mouldings, and JS 9000 are also works of artistic craftsmanship; as such, s 77 of the Copyright Act 1968 (Cth) does not deprive these works of copyright upon industrial application. The fourth, fifth, and sixth respondents infringed the applicant's copyright by reproducing substantial parts of these works, and the first, second, and third respondents were directly involved as joint tortfeasors.

Parties
Applicant: John Harley Swarbrick; First Respondent: Brent Burge; Second Respondent: Trevor Rogers; Third Respondent: Benjamin Warren; Fourth Respondent: Boldgold Investments Pty Ltd (ACN 105 065 272); Fifth Respondent: Glen Peter Bosman; Sixth Respondent: Sergio Edward Zaza
Jurisdiction
Australia
Judgment Date
24 June 2004
Procedural Posture
Copyright Infringement Proceedings / Liability Trial – Separate Determination Prior to Relief
Outcome
Judgment for the applicant on the issue of liability; declarations and ancillary orders made; questions of further relief and quantum of damages or profits reserved.
Legal Topics
Copyright in Artistic Works, Designs and Industrial Application, Works of Artistic Craftsmanship, Sculptures Under Copyright, Infringement of Copyright, Originality in Copyright, Relationship Between Design Registration and Copyright
Intellectual Property Law Copyright in Artistic Works Designs and Industrial Application Works of Artistic Craftsmanship Sculptures Under Copyright Infringement of Copyright Originality in Copyright Relationship Between Design Registration and Copyright

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Parties

John Harley Swarbrick

Applicant

Brent Burge

First Respondent

Trevor Rogers

Second Respondent

Benjamin Warren

Third Respondent

Boldgold Investments Pty Ltd (ACN 105 065 272)

Fourth Respondent

Glen Peter Bosman

Fifth Respondent

Sergio Edward Zaza

Sixth Respondent

Procedural Posture

Copyright Infringement Proceedings / Liability Trial – Separate Determination Prior to Relief

Legal Issues

  1. 1 Does copyright subsist in the Plug, Moulds, Mouldings, JS 9000 yacht, or Drawings?
  2. 2 Whether infringement of copyright occurred in relation to these works?
  3. 3 Does s 77 of the Copyright Act 1968 (Cth) operate to remove copyright protection due to industrial application as an unregistered corresponding design?

Ratio Decidendi

The Plug, the Moulds, the hull and deck Mouldings, the first JS 9000 yacht, and the Drawings are artistic works for which copyright subsists. The Plug, Mouldings, and JS 9000 are also works of artistic craftsmanship; as such, s 77 of the Copyright Act 1968 (Cth) does not deprive these works of copyright upon industrial application. The fourth, fifth, and sixth respondents infringed the applicant's copyright by reproducing substantial parts of these works, and the first, second, and third respondents were directly involved as joint tortfeasors.

Court Disposition

Judgment for the applicant on the issue of liability; declarations and ancillary orders made; questions of further relief and quantum of damages or profits reserved.

Orders

  • Declarations that copyright subsists in, and the applicant is owner of, the Plug, the Moulds, the hull and deck Mouldings, the first JS 9000 yacht, and the Drawings.
  • Declaration that the fourth respondent infringed applicant's copyright in the artistic works (other than deck Mould and Moulding) by producing an incomplete flop mould of the hull; and intended infringement of deck Mould and Moulding but for interlocutory relief.