## Facts

- Three Aboriginal artists and the Public Trustee (for estates of five deceased Aboriginal artists) owned copyright in multiple paintings depicting culturally significant “Dreaming” imagery.
- An import company arranged overseas manufacture (Vietnam) and imported into Australia carpets bearing designs that reproduced five artworks and substantially reproduced three others.
- The company sourced the images from published institutional materials that identified the works, named the artists, and described their spiritual significance.
- The respondents did not obtain permission from the artists or estates before manufacturing, importing, or selling the carpets.
- Evidence showed the use of sacred imagery on floor coverings caused particular cultural and spiritual offense because the images would be walked upon, and the artists had custodial responsibilities to their communities regarding these designs.
- The applicants sued in the Federal Court of Australia alleging copyright infringement under the Copyright Act 1968 (Cth) and misleading or deceptive conduct under the Trade Practices Act 1974 (Cth).

## Issues

1. Whether importing and selling carpets reproducing the artworks constituted copyright infringement, including whether the carpets reproduced a “substantial part” of each work.
2. Whether the company and individual officers were liable, including whether relevant knowledge was attributable to the corporation.
3. Whether the marketing and sale of the carpets involved misleading or deceptive conduct under the Trade Practices Act.
4. How damages should be assessed where infringement of Indigenous artworks causes cultural and spiritual harm, and whether exemplary damages were available.

## Decision

- The court held that the carpets reproduced or substantially reproduced the applicants’ artworks and that the respondents infringed copyright by importing and dealing in the infringing copies.
- The court held the company and at least the managing director liable; the managing director’s relevant knowledge was imputed to the corporation.
- The court found contraventions of the Trade Practices Act based on misleading or deceptive conduct connected with marketing and sale of the unauthorised carpets.
- The court awarded total damages of A$188,640, comprising compensatory damages and exemplary damages reflecting the seriousness of the conduct and cultural harm.

## Legal Principles

- Copyright infringement may be established where an alleged copy reproduces a “substantial part” of the work assessed qualitatively, including the essential visual features and arrangement of motifs, even when translated into a different medium.
- Importing infringing copies for commercial purposes and dealing in them can constitute actionable infringement.
- Corporate liability may be established where a directing officer’s knowledge that the conduct would infringe is attributed to the corporation.
- Damages for infringement may account for non-economic harm, including distress and reputational injury; exemplary damages may be awarded where the defendant’s conduct warrants punishment and deterrence, including for culturally specific harm caused by misuse of Indigenous sacred imagery.

## Conclusion

The court applied orthodox copyright doctrine to protect Indigenous artists against unauthorised commercial reproduction through overseas manufacture and importation, imposed corporate and officer liability based on attributed knowledge, found misleading conduct in marketing, and awarded substantial damages including exemplary damages to reflect cultural and spiritual injury beyond economic loss.


Milpurrurru v. Indofurn Pty Ltd (Austl.), 54 F.C.R. 240 (Fed. Ct. Austl. 1994)