Flags 2000 Pty Ltd v Smith [2003] FCA 1067

FEDERAL COURT OF AUSTRALIA

Flags 2000 Pty Ltd v Smith [2003] FCA 1067 COPYRIGHT – infringement of copyright in the Aboriginal flag – earlier declaration of the Federal Court that applicant the author of the design of the Aboriginal flag and owner of the copyright therein – second applicant had exclusive license to reproduce, manufacture, sell and distribute flag – unauthorised display and sale of the flag by the respondent – sales of the flag after respondent made aware of applicants' ownership of copyright and exclusive licence – authorship of design and ownership of copyright put in issue by respondent – whether additional damages should be awarded. Flags Act 1953 (Cth): ss 5, 36, 38 Copyright Act 1968 (Cth): s 115 Thomas v Brown (1997) 37 IPR 207, applied Cala Homes (South) Limited v Alfred McAlpine Homes East Limited (No 2) 23 [1996] FSR 36, referred to Polygram Pty Ltd v Golden Editions Pty Ltd (1997) 38 IPR 451, referred to XL Petroleum (NSW)PtyLtd vCaltexOil (Australia) Pty Ltd (1985) 155 CLR 448, referred to Raben Footwear Pty Ltd v Polygram Records Inc (1997) 37 IPR 417, applied MJA Scientifics International Pty Ltd v SC Johnson & Son Pty Ltd (1999) 43 IPR 275, considered Milpurrurru v Indofurn Pty Ltd (1995) 30 IPR 209, considered Colgate‑Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225, referred to Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, referred to J‑Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301, referred to Ragata Developments Pty Ltd v Westpac Banking Corporation (unreported, Davies J, Federal Court of Australia, 5 March 1993), referred to Carson v John Fairfax & Sons (1992) 178 CLR 44, referred to Microsoft Corporation v Goodview Electronics Pty Ltd (2000) 49 IPR 578, referred to Autodesk Inc v Yee (1996) 35 IPR 415, referred to Bailey v Namol Pty Ltd (1995) 30 IPR 147, referred to