Copyright: sculptures and t-shirts - Radford v Hallenstein Bros Ltd

The High Court has ruled on the ambit of s73 of the Copyright Act 1994 and assessed the extent to which a work of sculpture displayed in a public place can be reproduced in two dimensions for profit.

The High Court recently ruled on the true construction of s73 of the Copyright Act 1994. 

Section 73 has always appeared to be intended to exempt from being an infringement the copying of a sculpture that is permanently situated in a public place (or in premises open to the public), so long as the copy made is a graphic work, or a photograph or film of the sculpture in question.  In other words, s73 appeared to condone the copying of such sculptures in two-dimensional form even if the copies made are sold commercially.

The background to the case was as follows.  Hallensteins sold a number of t-shirts which featured on their front a photograph of two large sculptures produced by Mr Radford in 1998 and displayed in a park in Ponsonby, Auckland.

Mr Radford brought a claim based on three causes of action.  First, he claimed, Hallensteins had breached his copyright in the sculptures by reproducing them on the t-shirts.  Second, he claimed Hallensteins had imported into New Zealand copies of his sculptures, intent on selling them knowing or having reason to believe they infringed copyright.  This cause of action was based on the importation of t-shirts from China bearing the relevant photographs.  Third, he claimed a breach of his moral rights.  Under this cause of action, he asserted that Hallensteins had set his sculptures on the t-shirts and that was “incongruous, distorting and derogatory”. 

The claim had initially been brought in the District Court and on 17 July 2006 a District Court Judge struck out Mr Radford's first two causes of action.  He did so on the basis of s73 of the Copyright Act 1994. 

Mr Radford appealed to the High Court and asserted that s73, while permitting copying of sculptures in the public domain, in spite of copyright in certain circumstances, did not permit the indirect copying of underlying works, such as drawings or models.

Justice Keane in the High Court carefully reviewed the history, provenance and purpose of s73.  In doing so, he accepted that the section when literally read, did not explicitly exclude from the protection of copyright underlying works created in the course of making a sculpture (for instance elevations or drawings).  In this regard, he said "on a literal reading they lie beyond s73."

Notwithstanding this finding, he went on to hold that to construe s73 in such a limited way would lead to an absurdity and undermine the intent and purpose of the section.  For that reason, Keane J held that s73 must condone indirect copying of such underlying works whether in two or three dimensions and whether or not they too are in the public domain.

This is obviously a sensible construction of s73 as a literal reading of the section would not marry with the obvious intentions of the legislature and would also result in a section that was thoroughly impractical.

As far as we are aware Mr Radford’s moral rights claim has yet to be determined.

Advice and information This article is by Bell Gully senior associate, Garry Williams. Bell Gully's Intellectual Property team can advise you on all types of IP issues, including the registration and maintenance of trade marks. Contact the team for more information.

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