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?

John Bulun Bulun & Anor v R & T Textiles Pty Ltd

John Bulun Bulun & Anor v R & T Textiles Pty Ltd

Federal Court of Australia, Von Doussa J

Unreported

3 September 1998

by Martin Hardie

Early in his judgment, His Honour Justice Von Doussa observed that:

[T]hese proceedings represent another step by Aboriginal people to have communal title in their
traditional ritual knowledge, and in particular in their artwork, recognised and protected by the
Australian legal system.[1]

For the best part of the last ten years, senior members of the Ganalbingu clan of North-Central
Arnhem Land have developed a relationship of legal reciprocity with the Federal Court of
Australia by entrusting that Court with an understanding of the importance of their corpus of
ritual knowledge. This relationship came about as a result of commercial appropriations of
artistic productions embodying Ganalbingu law and custom. In order to protect the integrity of
their law, senior members of the Ganalbingu clan have, on a case-by-case basis, introduced the
Court progressively to further aspects of their customary law and tradition. The Aboriginal
copyright cases represent a jurisprudential dialogue between men of high degree, and may result
in the finding of common ground between Aboriginal law and the law administered by the
Federal Court.

The T -Shirts case[2] and the Ten Dollar Note case[3] established that traditional Aboriginal
artworks constituted 'original' works for the purposes of the Copyright Act 1968 (Cth) and were
therefore protected against breach of copyright. In the Carpets case,[4] the Court took Aboriginal
law and tradition into account in assessing damages for a breach of copyright. The present case
involved notions of 'collective' or communal ownership of the material encoded in the artistic
work. Each case involving the Ganalbingu has seen the senior men disclose to the Court deeper
insights into the basis of their law and custom.

Facts

The copyright infringement for which the applicants sought relief was the reproduction of Bulun
Bulun's bark painting Magpie Geese and Waterlilies at the Waterhole as a fabric print in
Indonesia imported into Australia.

The first applicant, Bulun Bulun, sought and obtained full relief in respect of the respondent's
infringement. The representative action brought by the second applicant sought relief by way of
declaration that the Ganalbingu people were the equitable owners of the copyright subsisting in
the artistic work created by Bulun Bulun.

Justice Von Doussa summarised the second applicant's claim and its relationship to the claim of
the first applicant at page 15 of his judgement:

The statement of claim alleges 'on the reduction to material form of a part of the ritual
knowledge of the Ganalbingu people associated with Djulibinyamurr by the creation of the
artistic work, the first applicant held the copyright subsisting in the artistic work as a fiduciary
and/or alternatively on trust, for the second applicant and the people he represents'. The
foundation for this contention is expanded in written submissions made on second applicant's
behalf. It is contended that these rights arise because second applicant and those he represents
have the power under customary law to regulate and control the production and reproduction of
the corpus of ritual knowledge. It is contended that the customs and traditions regulating this use
of the corpus of ritual knowledge places Mr Bulun Bulun as the author of the artistic work in the
position of a fiduciary, and, moreover, make Mr Bulun Bulun a trustee for the artwork, either
pursuant to some form of express trust, or pursuant to a constructive trust in favour of the
Ganalbingu people. The right to control the production and reproduction of the corpus of ritual
knowledge relating to Djulibinyamurr is said to arise by virtue of the strong ties which continue
to exist between the Ganalbingu people and their land.

The bark painting which was the subject of the proceedings is of the site Djilibinyamurr, which
is part of a small complex of waterholes within the Arafura Swamp in Central Arnhem Land.
Under Ganalbingu law and custom, Bulun Bulun's creator ancestor, Barnda the turtle emerged
from Djilibinyamurr and created the Ganalbingu people, their language and all their ceremonies,
songs and dances. Barnda created the local landscapes, and gave the land to Bulun Bulun's
ancestors on the condition that they continue to perform and maintain, respect and protect these
rituals, songs, dances and images. The painting embodies that story.
Collective ownership of copyright or communal title to copyright?

His Honour first considered whether it was possible, on the facts of this case, for Australian law
to recognise collective ownership of artistic works by the Ganalbingu people:

Whilst it is superficially attractive to postulate that the common law should recognise communal
title, it would be contrary to established legal principle for the common law to do so. There
seems no reason to doubt that customary Aboriginal laws relating to the ownership of artistic
works survived the introduction of the common law of England in 1788. The Aboriginal peoples
did not cease to observe their sui generis system of rights and obligations upon the acquisition of
sovereignty of Australia by the Crown. The question however is whether those Aboriginal laws
can create binding obligations on persons outside the relevant Aboriginal community, either
through recognition of those laws by the common law, or by their capacity to found equitable
rights in rem. [In 1788] the common law of England gave the author of an artistic work property
in unpublished compositions which lasted in perpetuity. That property was lost upon publication
of the artistic work. Exhibition for sale or sale constituted publication This property interest was
separate from the right recognised in equity to restrain a breach of confidence, a right which
continues. The common law of England did not protect an author of an artistic work after
publication. If the common law had not been amended in the meantime by statute, an interesting
question would arise as to whether Aboriginal laws and customs could be incorporated into the
common law. However, the common law has since been subsumed by statute. Copyright is now
entirely a creature of statute. Section 35(2) of the Copyright Act 1968 (Cth) provides that the
author of an artistic work is the owner of the copyright which subsists by virtue of the Act. That
provision effectively precludes any notion of group ownership in an artistic work, unless the
artistic work is a `work of joint ownership' within the meaning of s10(1) of the Act. In this case
no evidence was led to suggest that anyone other than Mr Bulun Bulun was the creative author
of the artistic work...

...The law and customs of the Ganalbingu people require that the use of the ritual knowledge and
the artistic work be in accordance with the requirements of law and custom, and that the author
of the artistic work do whatever is necessary to prevent any misuse. The artist is required to act
in relation to the artwork in the interests of the Ganalbingu people to preserve the integrity of
their culture, and ritual knowledge.

This is not to say that the artist must act entirely in the interests of the Ganalbingu people. The
evidence shows that an artist is entitled to consider and pursue his own interests, for example by
selling the artwork, but the artist is not permitted to shed the overriding obligation to act to
preserve the integrity of the Ganalbingu culture where action for that purpose is required.[5]
Fiduciary relationship between artists and traditional owners

In His Honour's opinion, the nature of the relationship between Mr Bulun Bulun and the
Ganalbingu people was a fiduciary one which gave rise to fiduciary obligations owed by Mr
Bulun Bulun:

The relationship between Mr Bulun Bulun as the author and legal title holder of the artistic work
and the Ganalbingu people is unique. The `transaction' between them out of which fiduciary
relationship is said to arise is the use with permission by Mr Bulun Bulun of ritual knowledge of
the Ganalbingu people, and the embodiment of that knowledge within the artistic work. That use
has been permitted in accordance with the law and customs of the Ganalbingu people...

...Having regard to the evidence of the law and customs of the Ganalbingu people under which
Mr Bulun Bulun was permitted to create the artistic work, I consider that equity imposes on him
obligations as a fiduciary not to exploit the artistic work in a way that is contrary to the laws and
custom of the Ganalbingu people, and, in the event of infringement by a third party, to take
reasonable and appropriate action to restrain and remedy infringement of the copyright in the
artistic work.[6]

However, these duties were not, as alleged in the statement of claim, commensurate with those of
a trustee, and:

Whilst the nature of the relationship between Mr Bulun Bulun and the Ganalbingu people is such
that Mr Bulun Bulun falls under fiduciary obligations to protect the ritual knowledge which he
has been permitted to use, the existence of those obligations does not, without more, vest an
equitable interest in the ownership of the copyright in the Ganalbingu people. Their primary
right, in the event of a breach of obligation by the fiduciary is a right in personam to bring
action against the fiduciary to enforce the obligation.[7]

In these circumstances, His Honour held that there was no occasion for the intervention of equity
to provide any additional remedy to the beneficiaries of the fiduciary relationship. Furthermore:

[T]he conclusion that in all the circumstances Mr Bulun Bulun owes fiduciary obligations to the
Ganalbingu people does not treat the law and custom of the Ganalbingu people as part of the
Australian legal system. Rather, it treats the law and custom of the Ganalbingu people as part of
the factual matrix which characterises the relationship as one of mutual trust and confidence. It is
that relationship which the Australian legal system recognises as giving rise to the fiduciary
relationship, and to the obligations which arise out of it.[8]

While he failed to find a relationship implying either an express or constructive trust between the
first and second applicants, Justice Von Doussa did take the time to outline the circumstances
necessary for the equitable remedies available for breach of trust to become available. He found
that
[T]he extent of those remedies would depend on all the circumstances, and in an extreme case
could involve the intervention of equity to impose a constructive trust on the legal owner of the
copyright in the artistic work in favour of the beneficiaries. By way of example, had Mr Bulun
Bulun merely failed to take action to enforce his copyright, an adequate remedy might be
extended in equity to the beneficiaries by allowing them to bring action in their own names
against the infringer and the copyright owner, claiming against the former, in the first instance,
interlocutory relief to restrain the infringement, and against the latter orders necessary to ensure
that the copyright owner enforces the copyright. On the other hand, were Mr Bulun Bulun to
deny the existence of fiduciary obligations and the interests of the parties asserting them, and
refuse to protect the copyright from infringement, then the occasion might exist for equity to
impose a remedial constructive trust upon the copyright owner to strengthen the standing of the
beneficiaries to bring proceedings to enforce the copyright. This may be necessary if the
copyright owner cannot be identified or found and the beneficiaries are unable to join the legal
owner of the copyright. It is well recognised that interlocutory injunctive relief can be claimed by
a party having an equitable interest in copyright ... if the copyright owner of an artistic work
which embodies ritual knowledge of an Aboriginal clan is being used inappropriately, and the
copyright owner fails or refuses to take appropriate action to enforce the copyright, the
Australian legal system will permit remedial action through the courts by the clan.[9]