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

CATCHWORDS COPYRIGHT - copyright in design of Aboriginal flag - application for declarations that applicant owner of copyright therein - claims by two other persons to have designed flag - analysis of complex of evidence - question of fact - no question of law or principle - discussion of copyright/design overlap - no submission applicant disentitled to relief by reason of provisions of Division 8 of Part III of Copyright Act 1968. Copyright Act 1968; ss.74, 75, 77 Designs Act 1906 Flags Act 1953; ss.3, 4, 5 HAROLD JOSEPH THOMAS v DAVID GEORGE BROWN AND JAMES MORRISON VALLELY TENNANT No. SG 62 of 1996 CORAM: SHEPPARD J PLACE: ADELAIDE (JUDGMENT DELIVERED IN SYDNEY) DATE: 9 APRIL 1997

IN THE FEDERAL COURT OF AUSTRALIA) ) No. SG 62 of 1996 SOUTH AUSTRALIA DISTRICT REGISTRY) ) GENERAL DIVISION ) BETWEEN: HAROLD JOSEPH THOMAS Applicant AND: DAVID GEORGE BROWN First Respondent AND: JAMES MORRISON VALLELY TENNANT Second Respondent MINUTES OF ORDER CORAM: SHEPPARD J PLACE: ADELAIDE (JUDGMENT DELIVERED IN SYDNEY) DATE: 9 APRIL 1997 THE COURT ORDERS THAT: 1. It be declared that: (a) 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, such flag being known as "the Aboriginal flag" ("the artistic work"); and (b) Harold Joseph Thomas is the owner of the copyright subsisting in the said artistic work. 2. Leave be reserved to the applicant to make application for the further relief sought in his amended application filed on 1 August 1996 provided that any such application is made on or before 23 April 1997. Such application may be made by notifying it to the associate to Sheppard J and to the respondents to the application on or before 23 April 1997. 3. There be no order as to costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.