The plaintiff was a sculptor. Three of his works were large architectural forms completed in 1998. These were located in a public park in Auckland. The plaintiff also had 1/10th scale bronzes in a limited edition. 

The defendant commissioned and sold, as part of a range of garments made in China, t-shirts that included on them a photograph of two of the three architectural sculptures. The plaintiff objected to this and bought a claim in the District Court alleging copyright infringement, importation into New Zealand of copies of his sculptures (i.e. the t-shirts) knowing or having reason to believe that they infringed copyright and breach of his moral rights. 

At first instance the District Court struck out the first two causes of action on the basis that the plaintiff had not breached any copyright. The basis of the strike out was that photographing the sculpture in public places and turning these photographs to profit was permitted under s73 Copyright Act 1994. 

S73 provides certain permitted uses for being sculptures, models for buildings or works of artistic craftsmanship that are permanently situated in a public place or in premises open to the public. The section reads:

“73.  Representation of certain artistic works on public display -

 (1)  This section applies to the following works:

(a) Buildings;
(b) Works (being sculptures, models for buildings, or works of artistic craftsmanship) that are permanently situated in a public place or in premises open to the public.

 (2)  Copyright in a work to which this section applies is not infringed by—

 (a)  Copying the work by making a graphic work representing it; or
 (b) Copying the work by making a photograph or film of it;
 (c)  Broadcasting, or including in a cable programme, a visual image of the work.

 (3)  Copyright is not infringed by the issue to the public of copies, or the broadcasting or inclusion in a cable programme, of anything whose making was, under this section, not an infringement of copyright.”

The Court noted that the provision is modelled on s62 of the UK Copyright Designs & Patents Act 1988. That provision has been criticised by Laddie Prescott & Vittoria as incoherent (3rd edition para 20-76). Similarly Copinger (15th edition para 9-169) has noted that use of the phrase “in such a work” in the equivalent UK section had the potential to limit the scope of the exception quite considerably by confining it to the building/sculpture and not covering preliminary drawings or plans. 

The point on appeal was whether, in striking out the copyright pleadings, the District Court was correct in holding that s73 must permit indirect copying of underlying works like drawings or models. 

Keane J held that s73 must be given some sensible effect and if, on a literal reading, that was not possible, then a less than literal reading may be not merely justified but essential to achieve its apparent purpose and to avoid absurdity: Inco Europe Limited v First Choice Distribution [2000] 2 All ER 109, HL; Frucor Beverages Limited v Rio Beverages Limited [2001] 2 NZLR 604 CA. 

Following the principles outlined in those cases, Keane J held that “the purpose to be served by legislation, once identified, trumped the text”. He considered that this was the only way to make sense of s73 - “more especially as it is thought to express an exception to copyright with a clear provenance that may have become more narrowly expressed than was ever intended”. 

Keane J noted that the plaintiff’s argument eroded the scope and protection of s73:

“To the extent that s73 speaks it does so plainly. It sets out to allow members of the public, including players in the market, to copy in two-dimensions sculptures permanently in the public domain and even for profit. It does so by setting aside any copyright in the work that the author might otherwise enjoy.”

The plaintiff’s argument would leave anyone who copied sculptures in the public domain vulnerable to a claim in copyright if they indirectly copied any underlying work. On this interpretation, the section would only protect the copier if there were no such underlying work or where copyright had expired. This would “erode the immunity that s73 seemingly confers, but without saying so”. 

Keane J therefore upheld the lower Court interpretation as it gave “the most complete effect to what s73 expressly permits by completing the logic”.