The Federal Court of Australia has decided an appeal in a dispute between two sellers of photo box albums. The Court denied the appeal against the unsuccessful claim of copyright infringement but allowed the appeal based on contraventions of the Trade Practices Act.

The appellant argued that the respondent and its director infringed copyright in an “artistic work” being a “drawing” on the side of the packaging of the photo box album. The Court observed that the image on the packaging consisted of text fulfilling a semiotic function and a photograph, which, either separately or combined, were not drawings for the purposes of copyright subsistence. The Court refused to allow an amendment of the claim to infringement in a “compilation” because it lacked merit in this case; a compilation involves collecting, arranging or organising disparate data.

On the trade practices claim, the Court held that a substantial number of consumers of photo boxes in the relevant market would be likely to think from the design of the respondents’ packaging that the respondents had an affiliation with the appellant that they did not have. Damages and interest were awarded against the respondents.

Woodtree Pty Ltd v Zheng & Anor [2007] FCA 1922 (7 December 2007)

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