A case study on Bulun Bulun Case

by Nikhil Issar

  1. Introduction

The Bulun Bulun Case in the words of Justice Von Doussa represent another step by Aboriginal people to have communal title in their traditional ritual knowledge.[1]

The previous T -Shirts case[2]and the Ten Dollar Note case[3] had established that traditional Aboriginal artwork constituted ‘original’ works for under the Australian Copyright Actand therefore they deserved protection against a breach of copyright. The issue at hand in the Bulun Bulun case involved notions of communal ownership of the material embodied in the artistic work as the artistic work had been derived from the common heritage of the Ganalbingu clan.

  1. Facts

The bark painting Magpie Geese and Water Lilies at the Waterhole created by Mr. John Bulun Bulun was created in inspiration of and in accordance with the traditional customs of the Ganalbingu people and had been blessed with the necessary consent of Ganalbingu elders.

The painting had been reproduced in a fabric print and imported into Australia, thus necessitating a copyright infringement action.

Mr. Bulun Bulunobtained full relief in respect of the respondent’sinfringement as the respondent himself acquiesced to the claim of copyright infringement.[4]The second application had sought a declaratory relief from the court stating that “The  Ganalbingu people were the equitable owners of the copyright subsisting in theartistic work created by Bulun Bulun”.


  1. Pertinent Legal Issues

The following Pertinent Legal Issues had been raised within the Bulun Bulun Case:

3.1. Whether there existed a communal ownership of Copyright over the Artistic work?

It was stated that the law of Copyright was entirely a creature of statute and was no longer merely a part of the Common Law. Under Section 35(2) of the Australian Copyright Act it was stated that only the author of the artistic work shall be deemed to be the copyright holder, unless the artistic work is of the nature of a joint work within the meaning of Section 10(1) of the Australian Copyright Act. Furthermore, there was no evidence to suggest that the artistic work was a joint work. It was therefore held that communal ownership of copyright cannot be bestowed to the Ganalbingu people owing to the express provisions of the Copyright Act.[5]

3.2. Whether there was a fiduciary relationship between the artist and the traditional owners I.e. the Ganalbingu people?

It was held that the `transaction’ between Mr. Bulun Bulun and the Ganalbingu people created a fiduciary relationship as the Ganalbingu people had provided permission to Mr Bulun Bulun to utilize the ritual knowledge of the Ganalbingu people, and to embody that knowledge within the artistic work. It was thus stated 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, the existence of these fiduciary duties does not imply that the Ganalbingu people have an equitable interest of ownership of the Copyright. The position of Mr. Bulun Bulun cannot be said to be that of a “Trustee” owing to his fiduciary obligations. The primary right accorded to the Ganalbingu people is that in the event of a breach of obligation by the fiduciary they have a right in personam to bring action against the fiduciary to enforce the obligation.[7]

The conclusion that in all the circumstances Mr Bulun Bulun owes fiduciary obligations to the Ganalbingu people is derived from the nature of the transaction that had occurred between the two parties based off the law and custom of the Ganalbingu people. However, this conclusion does not treat the law and custom of the Ganalbingu people as part of the Australian legal system as it is questionable as to whether Aborginal laws and customs have the power to bind outsiders. The conclusion of fiduciary duty on the part of Mr. Bulun Bulun 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]

3.2.1. Situations where the Ganalbingu people can exercise equitable remedies for breach of trust

Justice Von Doussa enlisted the following situations which would have necessitated a 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.

l  If Mr Bulun Bulun failed to take action to enforce his copyright, the beneficiaries would be allowed to bring an action 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.[9]

l  If Mr Bulun Bulun denies the existence of fiduciary obligations and the interests of the parties asserting them, and refuses to protect the copyright from infringement, then equity would impose a remedial constructive trust upon the copyright owner to strengthen the standing of the beneficiaries to bring proceedings to enforce the copyright.[10]


Even though the decision does not bestow the transaction between the artist and the community the status of a “Trust”, it provides for a fiduciary obligations which if are not adequately carried out may result in the imposition of a remedial constructive trust. However, the issue of duration of the copyright protection is left unresolved as copyright in the artistic work would expire 50 years after the death of Mr. Bulun Bulun but the rights of the Ganalbingu people over underlying rituals would last in perpetuity

[1]John Bulun Bulun & Anor v R & T Textiles Pty Ltd (‘Bulun Bulun) FCA 3 September 1998 per Von

Doussa at 5.

[2]Bulun Bulun & Nejlam, FCA 1998.

[3] Yumbulul v Reserve Bank of Australia [1991] FCA 332; (1991) 21 IPR 481.

[4]Justice Von Doussa had commented that even though the Company had acquisced to infringement the infringing art work had substantially copied the copyrighted painting, 41 IPR 513 at 520.

[5]Supra Note 1 at 14, 18

[6]Ibid at 18

[7]Ibid at 19

[8]Ibid at 18

[9]Ibid at 20

[10]Ibid at 20

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