Swarbrick v Burge [2004] FCA 813

FEDERAL COURT OF AUSTRALIA

Swarbrick v Burge [2004] FCA 813 INTELLECTUAL PROPERTY – copyright – designs – applicant (a naval architect and shipwright) prepared freehand drawings of a yacht – those drawings digitised and scanned into a computer – applicant then made, by hand, a "Plug" in the shape of a yacht – Plug substantially different from freehand and digitised drawings – applicant made major changes to dimensions of Plug – applicant fashioned other changes manually and by eye – used Plug to make mould for manufacture of mouldings of fibreglass yacht by vacuum infusion – applicant's licensee manufactured and sold 32 such yachts in Australia and overseas – respondents obtained an identical yacht from former employee of applicant's licensee and, by reverse engineering, had prepared a flop mould of the hull and were also involved in various stages of the manufacture of a deck moulding intended for use with that hull – respondents intended to manufacture and sell the yachts – whether applicant author and owner of copyright in the Plug, hull and deck moulds made from that Plug, hull and deck mouldings made from those moulds and the first yacht built – whether applicant author and owner of copyright in certain drawings made during the course of and after construction of the Plug – whether applicant lost copyright protection through industrial application of an unregistered corresponding design – whether the applicant's Plug, moulds or the yacht were "sculptures" and also works of artistic craftsmanship – whether a sculpture can be a work of artistic craftsmanship for copyright purposes.

Copyright Act 1968 (Cth), ss 10(1), 32, 74, 77 Wham-O Manufacturing Company v Lincoln Industries Ltd [1984] 1 NZLR 641 applied Breville Europe plc & Ors v Thorn EMI Domestic Appliances Ltd [1995] FSR 77 referred to Sheldon and Hammond Pty Ltd v Metrokane Inc & Ors [2004] FCA 19 referred to George Hensher Ltd v Restawhile Upholstery (Lancs) Ltd [1976] AC 64 applied Cuisenaire v Reed [1963] VR 719 referred to Merlet v Mothercare plc (1984) 2 IPR 456 referred to Commission of Taxation v Murray (1990) 21 FCR 436 referred to Coogi Australia Pty Ltd v Hysport International Pty Ltd & Ors (1998) 86 FCR 154 applied NABM of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 335 referred to Grain Elevators Board (Vic) v Dunmunkle Corp (1946) 73 CLR 70 referred to Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 referred to Shelley Films Ltd v Rex Features Ltd [1994] EMLR 134 referred to United Pacific Industries Pty Ltd v Madison Spate Pty Ltd (1998) BC 9802268 referred to Bonz Group Pty Ltd v Cooke [1994] 3 NZLR 216 referred to Safe Sport Australia Pty Ltd v Puma Australia Pty Ltd (1985) 4 IPR 120 referred to NABM of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 335 referred to Grain Elevators Board (Vic) v Dunmunkle Corp (1946) 73 CLR 70 referred to