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

CATCHWORDS COPYRIGHT - infringement proceedings by executors of artist - serious question to be tried whether artist gave licence for publication - balance of convenience does not favour grant of interlocutory injunction - no point of principle Copyright Act 1968, s36(1). Clune v Collins Angus & Robertson Publishers Pty Ltd (1992) 25 IPR 246 ARKIE DEYA WHITELEY and ANTHONY PATRICK CLUNE (Executors of the Estate of Brett Whiteley) v MURDOCH MAGAZINES PTY LIMITED No. NG 733 of 1995 Coram:Whitlam J Place: Sydney Date: 28 September 1995

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 733 of 1995 ) GENERAL DIVISION ) ARKIE DEYA WHITELEY and ANTHONY PATRICK CLUNE (Executors of the Estate of Brett Whiteley) Applicants MURDOCH MAGAZINES PTY LIMITED Respondent Coram:Whitlam J Place: Sydney Date: 28 September 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The applicants' claim for interlocutory relief be refused with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 733 of 1995 ) GENERAL DIVISION ) ARKIE DEYA WHITELEY and ANTHONY PATRICK CLUNE (Executors of the Estate of Brett Whiteley) Applicants MURDOCH MAGAZINES PTY LIMITED Respondent Coram:Whitlam J Place: Sydney Date: 28 September 1995 REASONS FOR JUDGMENT The Art Gallery of New South Wales is currently exhibiting works by the artist Brett Whiteley who died on 13 June 1992. For this occasion Thames and Hudson Ltd has published a book, "Brett Whiteley Art & Life", which is on sale at the gallery. The artist's works in this book have been reproduced with the authority of the executors of his estate, who are the applicants in this proceeding. The respondent also wishes to take advantage of the interest generated by the current exhibition. It has arranged a reprint of a book, "Brett Whiteley" by Sandra McGrath, which was first published in 1979.