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  5. Case study 5: John Bulun Bulun & M* v. R&T Textiles
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Case study 5: John Bulun Bulun & M* v. R&T Textiles

[The source of this case summary is Australian Indigenous Law Reporter (1998) J 3 (4). References to M* are to an Aboriginal artist and elder who is now deceased. To write his name would be culturally inappropriate.]

In 1996, the artist Johnny Bulun Bulun’s work Magpie Geese and Water Lilies at the Waterhole was again the subject of unauthorised copying, this time on imported fabric. Bulun Bulun commenced action against the company, R & T Textiles, for breach of copyright. A senior clan elder, M*, as representative of the Ganalbingu people, also brought proceedings in his own right, claiming an equitable right in the copyright subsisting in the artistic works.

Bulun Bulun painted the artistic work in 1978 with permission of senior members of the Ganalbingu people. Bulun Bulun sold the work to Maningrida Arts and Crafts Centre, where it was sold to the Northern Territory Museum of Arts and Sciences. The work was reproduced with Bulun Bulun’s consent in a book by Jennifer Isaacs, Arts of the Dreaming - Australia’s Living Heritage.

When proceedings were served, R & T Textiles admitted infringement of copyright in the artistic work, pleading that they were unaware of copyright ownership by Mr Bulun Bulun. The respondents immediately withdrew the infringing fabric from sale. Approximately 7600 metres of the fabric had been imported and approximately 4 231 metres had already been sold. In settlement of the infringement claims, the company consented to various orders and declarations and the case proceeded on a series of legal arguments aimed to explore issues of communal ownership in artistic works.

The artwork incorporated traditional ritual knowledge belonging to the Ganalbingu people. Mr Bulun Bulun gave evidence that it is his duty to create such works as part of his traditional land ownership responsibilities in accordance with Ganalbingu custom and law. Further to this role, Mr Bulun Bulun stated that he was obliged to consult with other traditional owners on certain kinds of reproductions of the painting. Mr Bulun Bulun gave evidence that reproduction that was not subject to proper consultations threatened the framework of Ganalbingu society. On the basis of this relationship, M*, a co-applicant to the proceedings, claimed an equitable interest in the copyright of the artistic work that entitled him, on behalf of the Ganalbingu people, to claim relief for unauthorised reproduction of the artistic work.

The court dismissed M*’s claim for equitable ownership, stating that unless the artistic work is a ‘work of joint ownership’ (within the meaning of the Copyright Act) where one or more artists created the work, there is no communal ownership in an artistic work. In this case, von Doussa J considered that there was no evidence to suggest that any person other than Mr Bulun Bulun was the creative author of the artistic work.

The Court did consider, however, that Mr Bulun Bulun owed a fiduciary duty to M* and the Ganalbingu people to protect the ritual knowledge which he had been permitted to use under customary law. Further, while Mr Bulun Bulun had the right to depict the designs, he had a fiduciary obligation to the rest of the clan group to ensure that the image would only be reproduced in ways that would preserve the integrity of the culture and the knowledge. In the event of a breach of obligation by the artist, the group had a right to bring an action ‘in personam’ against the artist to enforce the obligation. The court considered that Mr Bulun Bulun had fulfilled his obligation by taking legal action against the company and therefore there was no reason for the Court to provide any additional remedy to the Ganalbingu people.

Discussion points

  • Why did the Court decide that Bulun Bulun owed a fiduciary duty to M* and the traditional owners?
  • What impact might this decision have on Aboriginal artists who depict traditional or totemic figures?
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Case study 5: John Bulum Bulum & M* v. R&T Textiles