Burge v Swarbrick [2005] FCAFC 257

Burge v Swarbrick [2005] FCAFC 257

The Full Court held that 'work of artistic craftsmanship' in s 77(1)(a) of the Copyright Act 1968 (Cth) is not confined to works falling only within paragraph (c) of the s 10(1) definition of 'artistic work'; a sculpture can also be a work of artistic craftsmanship for s 77(1)(a). On the evidence accepted by the primary judge, the hull and deck of the Bateau Rouge were works of artistic craftsmanship. Because the copyright alleged to be infringed was copyright in those works, s 77(2) had no application and Boldgold's reproduction or threatened reproduction infringed or threatened to infringe the Designer's copyright.

Jurisdiction
Australia
Judgment Date
08 December 2005
Procedural Posture
Copyright Appeal / Appeal to the Full Court From Declarations and Orders of a Judge of the Federal Court; Leave to Appeal Was Not Opposed and the Appeal Was Heard on the Merits.
Outcome
Appeal allowed in part; appellants ordered to pay the respondent's costs of the appeal.
Legal Topics
['subsistence of Copyright in Artistic Works' 'work of Artistic Craftsmanship' 'sculpture' 'corresponding Design' 'industrial Application of Designs' 'copyright Infringement' 'yacht Hull and Deck Design']
['copyright Law' 'designs Law' 'intellectual Property'] ['subsistence of Copyright in Artistic Works' 'work of Artistic Craftsmanship' 'sculpture' 'corresponding Design' 'industrial Application of Designs' 'copyright Infringement' 'yacht Hull and Deck Design']

Case Brief

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Procedural Posture

Copyright Appeal / Appeal to the Full Court From Declarations and Orders of a Judge of the Federal Court; Leave to Appeal Was Not Opposed and the Appeal Was Heard on the Merits.

Legal Issues

  1. 1 ['Whether a sculpture can also be a work of artistic craftsmanship within the meaning of s 77(1)(a) of the Copyright Act 1968 (Cth).' 'Whether the plugs or the hull or deck of the Bateau Rouge were works of artistic craftsmanship within the meaning of s 77(1)(a) of the Copyright Act 1968 (Cth).' 'Whether s 77(2) of the Copyright Act 1968 (Cth) provided a defence because a corresponding design in the Digitised Drawings, Finished Drawings, plugs, hull or deck had been applied industrially.']

Ratio Decidendi

The Full Court held that 'work of artistic craftsmanship' in s 77(1)(a) of the Copyright Act 1968 (Cth) is not confined to works falling only within paragraph (c) of the s 10(1) definition of 'artistic work'; a sculpture can also be a work of artistic craftsmanship for s 77(1)(a). On the evidence accepted by the primary judge, the hull and deck of the Bateau Rouge were works of artistic craftsmanship. Because the copyright alleged to be infringed was copyright in those works, s 77(2) had no application and Boldgold's reproduction or threatened reproduction infringed or threatened to infringe the Designer's copyright.

Court Disposition

Appeal allowed in part; appellants ordered to pay the respondent's costs of the appeal.

Orders

  • ['The appeal be allowed in part.' "Order 1 made on 24 June 2004 be set aside and the following order be substituted in lieu of that order: Copyright subsists in, and the applicant is and has been (since the dates variously referred to below) the owner of and entitled to the copyright in each of the items described...