The Full Court of the Federal Court of Australia has found that copyright in film footage obtained and created through trespass is not owned by the film maker but is held on constructive trust for the landowner.
The Game Meats Company (GTC) operated an abattoir from private secured premises (Premises). Signs were displayed on the gate, including one which stated “Restricted Area. Do not Enter, Authorised Personnel Only”. Farm Transparency International (Farm Transparency), an animal protection advocacy operation, entered GTC’s Premises without the authority of GTC and placed video recording devices from which a film recording was created. The film comprised a 14-minute video of activity within the Premises. The film was sent to the Department of Agriculture, Fisheries and Forestry (by way of complaint) and uploaded to Farm Transparency’s website (alongside still images taken from the film).
GMC sought injunctive relief to restrain Farm Transparency from publishing the film, as well as seeking a constructive trust over the copyright in the film. The primary judge denied such relief, but, in finding that Farm Transparency had engaged in trespass, his Honour awarded damages in the sum of $130,000.
On appeal,[i] the Full Court of the Federal Court of Australia held that the High Court of Australia’s decision in Australian Broadcasting Corporation v Lenah Game Meats[ii] provided authority for the establishment a constructive trust over copyright in a cinematograph film in favour of a plaintiff which establishes that its legal or equitable rights have been “invaded”; it is inequitable and against good conscience for the maker of the film to assert copyright ownership in the film in such circumstances. Indeed, the facts of this case bore uncanny resemblance to ABC v Lenah Game Meats.
Two further lines of authority provide legal principle for the imposition of a constructive trust in absence of a fiduciary relationship:
- where property is obtained by theft or fraud, equity intervenes to impose a constructive trust on the thief or fraudulent recipient; and
- where a mistaken payment is sent, and the recipient becomes aware of the mistake.
The Court held that the fact that Farm Transparency was the creator of the property which did not previously exist was insufficient to deny the imposition of a constructive trust.
Further relief flowing from the Court’s imposition of a constructive trust in the copyright in the film in favour of GMC included that: (i) Farm Transparency should be permanently restrained from publishing any of the images from the film; (ii) Farm Transparency should be ordered to assign in writing to GMC the copyright in the film (and in default, a Registrar would be directed to execute such a transfer (noting that any assignment of copyright must be effected in writing pursuant to section 196(3) of the Copyright Act); (iii) Farm Transparency be ordered to permanently delete all film and photographs captured from the Premises (and to provide an attesting affidavit) and; (iv) a suppression and non-publication order.
Farm Transparency’s cross-appeal relating to the amount of exemplary damages was dismissed. In light of factors considered by the primary judge – including, for example, that Farm Transparency intended to effect similar trespasses on other premises in the future; Farm Transparency’s lack of remorse; and its ability to raise funds – the Court rejected Farm Transparency’s contention that the sum of $100,000 was “manifestly excessive”. It was further noted that there is no need for proportionality between the assessment of exemplary and compensatory damages.
[i] The Game Meats Company of Australia Pty Ltd v Farm Transparency International Ltd [2025] FCAFC 104
[ii] Australian Broadcasting Corporation v Lenah Game Meats [2001] HCA 63