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The artwork in question: Brett Whiteley's 'Blue Lavender Bay at Dusk' (1984)

Copying the substantial part of work 

Mark Cerne, Associate

When, as determined by the Court, Blue Lavender Bay, the forgery not by Brett Whiteley, was the subject of proceedings some years ago, the brush stokes affirmed it to be a fake to the former wife of Brett Whiteley, Wendy. Actually, much less than the entirety of the work needed to be reproduced in order for his estate to argue a case for breach of copyright.


As a refresher course for readers copyright in artistic work commences from the moment of creation.


Artistic work is a work defined by Parliament. While much is made of rights subsisting in low style literary or artistic works, “the compilation of table and computer program cases” or paintings and sculptures and drawings whether of artistic quality or not, there is much learned from focusing on the question of taking a “substantial part” of artistic work, when looking at those works like Whiteley’s in which the highest merit shines.


Unlike the registration system for other intellectual property rights the right to reproduce artwork in Australia exist solely in the Copyright Act 1968 (Cth) sections 8 and 32. And subsistence requires no creative or inventive step, as exists in the patents context. As a firm interested in art, we read artwork in the same way that Courts’ do when seeking evidence to answer the question whether infringement of copyright has occurred.


The test for infringement, among them, relates to whether a substantial part of the subject has been taken. It means that copyright can be infringed even if something less than the whole work has been ripped off.


Any answer takes a curious mix of the law defining the very essence of something worth protecting. It does not do so by applying any general rules. There is no 10%, 20%, 30% copying rule to speak of – a reason to engage lawyers with creativity and perspicacity in this space.


To contemplate the skill of Whiteley as the Court did, and others like to from time to time, recognises the application of the rule of substantiality does not follow a formula. It is applied by asking what the actual quality of the artwork is, rather than what is the quantity of the copying.


In IceTV Pty Ltd the Court stated that answering the question requires an assessment of the facts and law. That “substantial is a term susceptible of ambiguity and actually calculated to conceal a lack of precision.”


Wendy Whiteley just knew that the work was fake as the brush strokes on the forgery were imprecise.


With infringement of copyright the corollary seems true. Rather than nicking the entire work, paining a single line, reproducing a boat or sail with a white streak or that colour blue in the style of Whiteley may become arguably reproducing the entirety of the Blue Lavender Bay harbour-scape.


Mark Cerne is an Associate with experience with the Resale Royalty Act for Visual Artists 2009 (Cth).

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