## Facts

- John Bulun Bulun, an Aboriginal artist of the Ganalbingu people, created a painting depicting a sacred waterhole and culturally significant material, with permission from senior Ganalbingu members.
- The painting was later reproduced without authorization on fabric printed overseas.
- R & T Textiles Pty Ltd imported and sold the fabric in Australia.
- After being sued, R & T Textiles admitted copyright infringement and withdrew the fabric; consent orders resolved the infringement claim.
- The proceedings continued as a test case on whether the Ganalbingu people had communal rights in, or enforceable equitable claims relating to, the copyright.
- George Milpurrurru, acting representatively for the Ganalbingu people, sought recognition of communal/equitable interests in the copyright or, alternatively, enforcement of fiduciary obligations owed by the artist to the community.

## Issues

1. Whether the Ganalbingu people could claim equitable or communal ownership of the painting’s copyright (including by analogy to native title or statutory land rights, or through trust principles).
2. Whether, despite individual legal ownership of copyright by the artist, Aboriginal customary law and the circumstances created fiduciary obligations owed by the artist to the Ganalbingu people concerning use and protection of the work.

## Decision

- The court dismissed the representative claim for equitable or communal ownership of the copyright.
- The court found no basis for an express trust over the copyright and declined to infer a constructive or resulting trust producing communal beneficial ownership.
- The court accepted that a fiduciary relationship could arise between the artist and the Ganalbingu people, informed by customary law and the entrustment of sacred communal material to the artist.
- The fiduciary obligation was framed as a personal duty on the artist to exercise copyright control in a manner protective of the community’s cultural interests, not as a proprietary interest held by the community.
- No order was made converting the fiduciary duty into communal ownership of copyright; the practical infringement dispute against the textile company had already been resolved by consent.

## Legal Principles

- Communal interests grounded in Indigenous customary law do not, without a recognized doctrinal or statutory basis, yield equitable co-ownership of copyright in an artwork created by an individual author.
- Claims that intellectual property is an incident of native title or statutory land rights require appropriate procedural footing and proof; absent that, equitable ownership will not be recognized on that basis.
- An express trust over copyright requires intention to create a trust; it will not be found where the author did not intend to hold copyright on trust.
- Equity may recognize fiduciary obligations arising from customary law and the circumstances of creation where an artist is entrusted with depicting sacred communal knowledge, producing duties of loyalty and good faith in exploitation of the work.
- The content of such fiduciary duties may include obligations to avoid authorizing culturally harmful uses and to take reasonable steps, when able, to prevent or respond to misuse once known, but those duties remain personal rather than proprietary.

## Conclusion

The court held that the Ganalbingu people did not hold equitable or communal ownership of the painting’s copyright, but it recognized that the artist could owe fiduciary duties, shaped by customary law, to protect communal cultural interests when exercising and enforcing his individual copyright.


Bulun Bulun v. R & T Textiles Pty Ltd., 86 F.C.R. 244 (Fed. Ct. Austl. 1998)