Celebratory High Court cake creates a stir

Architects claim their copyright infringed by cake baked in the shape of the High Court ... Associate to Whitlam J (as he then was) created the cake and Federal Court judges helped consume it ... Implied freedom of political communication ... Remembering the great High Court cake copyright wheeze ... Correspondence between the parties 

From:
Edwards, Madigan, Torzillo and Briggs
Architects
Level 2, 75 Elizabeth Street
Sydney NSW 2000
Ph: (02) 8226 2000

1 December 2003

To:
Donny S. Low
36 Raglan Street
Mosman NSW 2088

Dear Sir

High Court of Australia

As you may be aware, we were the firm of consulting architects responsible for the conception and design of the High Court of Australia, Canberra (HCA). As such, we are the owners of copyright in the artistic works constituting the design plans and blueprints for the HCA, and we are also the owners of copyright in the HCA as a building pursuant to the Copyright Act 1968.

Infringing cakeIt has come to our attention that you have created or authorised the creation of a model of the HCA, without our consent or authorisation, in the form of a cake (the Infringing Cake). A copy of a photograph of the Infringing Cake is enclosed.

Such act constitutes a reproduction in a material form of the artistic works referred to above, namely the plans and blueprints for the HCA, and the building, both of which are protected as 'artistic works' as defined in section 10 of the Copyright Act 1968. We note that section 66 of the Copyright Act 1969 does not apply in these circumstances and you may not avail yourself of any such defence.

Accordingly, we are entitled to the following remedies:

1. An injunction to prevent you reproducing or authorising the reproduction of the HCA (or the underlying artistic works) in the form of a cake (or similar baked product);

2. an order that you deliver up the infringing product, together with all items used in the manufacture of the infringing products, namely moulds, spatulas, cake tins, egg beaters, etc, as well as all icing, flour, or other ingredients or constituents of the infringing product;

3. an order that you disclose on affidavit all persons who have consumed or been responsible for the consumption of the infringing product, together with all photographs, diary notes, messages of commendation or other salutations or similar documentation relating to the consumption, whether received from judges of the High Court or otherwise;

4. a personal apology to this firm, such apology to be in the form to be agreed between the parties, and to be published in the High Court Bulletin, with copies to the Chief Justice and puisne justices of the HCA; and

5. damages, or at our option, an account of the profits flowing from your infringing activities including additional damages having regard to the flagrancy and contumeliousness of your infringement, pursuant to section 115(4) of the Copyright Act 1968.

Unless we receive the above from you by tea time on Thursday, 4 December 2003, we may instruct our lawyers to commence proceedings against you without further notice and seek, inter alia, an interim order preventing you from baking any cakes in the future.

Yours faithfully,

Edwards, Madigan, Torzillo and Briggs 

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From:
Donny Low
36 Raglan Street
Mosman NSW 2088

4 December 2003

To:
Edwards, Madigan, Tozillo and Briggs Pty Ltd
Architects
Level 2, 75 Elizabeth Street
Sydney NSW 2000

Dear Mr Madigan,

High Court of Australia

I refer to the letter of Edwards, Madigan, Tozillo and Briggs Pty Ltd on 1 December 2003.

First, I congratulate you on the construction of the High Court of Australia, Canberra (HCA). (I believe the design was primarily done by Mr Chris Kringas.) I also note the architectural bias that you have when you refer to your entitlement to an apology to be published in the High Court Bulletin, 'with copies to the Chief Justice ad puisne justices of the HCA'. The High Court is not the building itself, but rather the justices as commissioned.

I attach an affidavit disclosing all persons who have consumed the allegedly infringing product. Attached to the affidavit is a copy of correspondence to the Chief Justice in relation to the allegedly infringing product and a copy of correspondence containing a message of commendation in reply. The original of my letter is currently in the possession of the Chief Justice, and due to my status as a vexatious correspondent of the court, I have not been able to request its return. The original of the letter from the Chief Justice is currently not in my possession. It is being framed.

I also refuse to comply with your request to 'deliver up the [allegedly] infringing product with all items used in the manufacture of the [allegedly] infringing product, namely moulds, spatulas, cake tins, egg beaters, etc, as well as all icing, flour, or other ingredients or constituents of the [allegedly] infringing product'. My refusal is on the following basis: 

• The allegedly infringing product has been consumed in its entirety and no part of it currently exists;
• The request for all ingredients or constituents of the allegedly infringing product is absurd – since all ingredients have been consumed and it cannot be seriously suggested that you are entitled to all the eggs, flour and butter in the world.
• I did not use any egg beaters and you are not entitled to any or all of my forks.
• The moulds, spatulas and cake tins used in the construction of the cake are required for a dinner party I am hosting on Sunday 6 December 2003. I undertake to hand them over by 8 December 2003.

I deny you are entitled to any of the remedies you claim. I invite you to commence proceedings should you wish to do so. Your instructing solicitors have revealed themselves to be anything but 'Baker" friendly, and have, no doubt, paid insufficient attention to the particular circumstances of this case in issuing a pro forma letter of demand.

I assert that the Copyright Act 1968 (Cth) has no application to my construction of a cake in the shape of the HCA due to the inconsistency of such application with the implied freedom of political communication in the Australian constitution.

In particular, I refer to the statement by Deane and Toohey JJ in Nationwide News Ltd v Wills (1992) 177 CLR 1 at 74 that the implied freedom extends to:

'information, opinions and ideas about all aspects of the government of the Commonwealth, including the qualification, conduct and performance of those entrusted (or who seek to be entrusted) with the exercise of any part of the legislative, executive or judicial powers of government which are ultimately derived from the people themselves.' 

This view was affirmed by Deane J in Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 at 179-182.

In Cuncliffe v Commonwealth (1994) CLR 272 Mason CJ stated that the implied freedom 'necessarily extends to the working of the courts and tribunals which administer and enforce the laws of this country' at 298.

I would distinguish the comments in the decision of the Victorian Supreme Court of Appeal in Herald and Weekly Times v Popovic [2003] VCSA 161 that criticism of a judicial officer does not fall within the implied freedom on the basis that the judicial officer in question was a Victorian magistrate.

The political nature of my cake is seen in the correspondence from the Chief. It cannot be suggested that a celebration of the work of the 'keystone of the Federal arch' is anything but a political comment. It thus falls within the implied freedom. The unconstitutionality of the application of s 36(1) of the Copyright Act means that I was entitled to ignore the law in baking my cake. Unser s 8 of the Act, you have no other enforceable source of copyright in the designs or otherwise of the HCA.

I will continue to bake cakes resembling the High Court on significant anniversaries or occasions related the court. However, in addition to the part compliance with your demands, I undertake to publically announce or display your designing of the court on such occasions.

Yours faithfully

Donny Low

STATUTORY DECLARATION

On Thursday 3 December 2003, I, Donny Su-ting Law, 36 Raglan Street, Mosman, New South Wales, affirm that:

1. On the day of the centenary of the first ceremonial sitting of the High Court of Australia, 6 October 2003, I baked a cake in the shape of the High Court at my residence, being 36 Raglan Street, Mosman, New South Wales. I commenced construction of the cake at approximately 11am and completed construction at 3am on Tuesday 7 October 2003. (I note that the photographs of the cake have erroneously printed on them the date 8 October 2003).

2. I brought the cake to my place of work, the Federal Court of Australia, NSW Registry to share with my colleagues. The cake was consumed in the level 21 Judges' bookroom at 4.30pm.

3. To the best of my recollection, the following people attended and consumed the cake:

• Justice Emmett
• Justice Jacobson
• Justice Bennett
• Patrick Knowles
• Daniel Tynan
• Jonathan Levy
• Julian Caldwell
• Amanda Andreazza
• Sharon Hodge
• Jesmini Ambikapathy
• Irene Sekkler
• Alistair McKeough
• James Mitchell
• Fleur Ramsay
• Clare O'Neil
• Suzan Davies
• Hamish Bevan
• Roxane Nolan
• Norman Laing

4. Leftovers of the cake were thrown out on approximately 13 October 2003.

Sworn at Sydney
State of New South Wales

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From:
Donny Low 
36 Raglan Street 
Mosman NSW 2088

30 October 2003

To:
Chief Justice Gleeson
Chambers of the Chief Justice
High Court of Australia
Level 19, Law Courts Building
Queens Square 
Sydney NSW 2000  

Dear Chief Justice,

Celebration of the Centenary of the High Court of Australia

I enclose for your interest photos of a cake that I baked to celebrate the Centenary of the High Court. Construction materials were comprised of madeira cake and butter icing. The cake was greedily consumed by staff of the Federal Court.

I am currently finishing my associateship with Whitlam J and will be a graduate solicitor at Blake Dawson Waldron next year. I hope you enjoy the photos.

Yours faithfully

Donny Low 

From:
Chambers of the Chief Justice
PO Box E435
Kingston ACT 2604

30 October 2003

To:
Donny Low
36 Raglan Street
Mosman NSW 2088

Dear Donny

Thank you for your letter of 30 October and the photographs. I admire the cake you cooked, to represent the High Court. I hope you did not put any nuts in it.

With best wishes,

Yours sincerely, 

Murray Gleeson,

Chief Justice