Whiteley, Arkie Deya & Anor v Murdoch Magazines Pty Ltd [1995] FCA 1055

Whiteley, Arkie Deya & Anor v Murdoch Magazines Pty Ltd [1995] FCA 1055

Although there was a serious question to be tried despite difficulties in the applicants' case on licence, the balance of convenience did not favour interlocutory injunctions because damages or an account of profits would adequately compensate any infringement, there was no evidence that sale and distribution would cause incalculable diminution of the applicants' intellectual property, and the respondent would suffer real commercial inconvenience if restrained.

Jurisdiction
Australia
Judgment Date
28 September 1995
Procedural Posture
Copyright Infringement Proceeding / Application for Interlocutory Injunction
Outcome
The applicants' claim for interlocutory relief was refused with costs.
Legal Topics
['interlocutory Injunction' 'copyright Infringement' 'licence to Publish Artistic Works' 'balance of Convenience' 'adequacy of Damages']
['copyright' 'intellectual Property' 'civil Procedure'] ['interlocutory Injunction' 'copyright Infringement' 'licence to Publish Artistic Works' 'balance of Convenience' 'adequacy of Damages']

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Procedural Posture

Copyright Infringement Proceeding / Application for Interlocutory Injunction

Legal Issues

  1. 1 ["Whether there was a serious question to be tried that republication of the 1979 book would infringe copyright in Brett Whiteley's works because it was without licence of the copyright owner." 'Whether damages or an account of profits would be adequate compensation if infringement were established.' "Whether the balance of convenience favoured granting interlocutory injunctions restraining republication of Sandra McGrath's book Brett Whiteley."]

Ratio Decidendi

Although there was a serious question to be tried despite difficulties in the applicants' case on licence, the balance of convenience did not favour interlocutory injunctions because damages or an account of profits would adequately compensate any infringement, there was no evidence that sale and distribution would cause incalculable diminution of the applicants' intellectual property, and the respondent would suffer real commercial inconvenience if restrained.

Court Disposition

The applicants' claim for interlocutory relief was refused with costs.

Orders

  • ["The applicants' claim for interlocutory relief be refused with costs."]