The High Court of Australia has ruled out imposing a constructive trust over copyright in images despite the images being obtained through a deliberate trespass.
In 2024, animal rights group Farm Transparency deliberately and repeatedly trespassed on the abattoir of the Game Meats Company (GMC) to install hidden cameras on the property. A 14 minute film created from the hidden-camera footage was subsequently created by Farm Transparency, provided to the Commonwealth Department of Agriculture, Fisheries and Forestry and Channel Seven, and uploaded to Farm Transparency’s website. The primary judge in the Federal Court of Australia awarded general and exemplary damages to GMC.
In a landmark decision on appeal, the Full Court of the Federal Court of Australia (Full Court) declared that Farm Transparency held the copyright in the captured images on constructive trust for GMC. The Full Court also ordered that Farm Transparency:
- be permanently restrained from publishing any of the copyright works (i.e. images);
- permanently delete all of the images;
- assign in writing the copyright in the images to GMC; and
- file an affidavit attesting to deletion of the images, as well as the identity of all persons to whom the images were provided.
You can read Addisons’ summary of the primary judgment and appeal to the Full Court here.
The High Court has now unanimously allowed Farm Transparency’s appeal in part, finding. that the Full Court had exceeded what was necessary to ‘do justice’ between the parties in imposing a constructive trust over copyright in the images.
While the High Court accepted that equitable relief such as constructive trusts may be available to redress ongoing damage resulting from a trespass, the Court highlighted the discretionary nature of such relief and the need to assess what is the most appropriate form of relief in the circumstances. The Court emphasised that “there is no principled reason for the law immediately to impose an institutional constructive trust in every case of copyright obtained as a result of even a wilful trespass … the only principled reason for the law to impose a constructive trust on copyright obtained as a result of a trespass is that other remedies are inadequate to rectify the consequences of the trespass.”
The High Court indicated that the Full Court failed to consider “the effect of a constructive trust on third parties or of whether there were more appropriate means than a constructive trust to quell the controversy and do justice between the parties”. In the circumstances, the potential effects of the constructive trust over copyright in the images were considerable. Not only did the constructive trust provide a “remedial vehicle to restrain publication” of the images by any third party (such as the Department and Channel Seven), but there was potential impact on the freedom of communication. Further, the Full Court gave limited consideration to public interest and the coherence of a constructive trust with other legislation.
Recognising that damages were an inadequate remedy in the circumstances, the High Court found that a mandatory injunction requiring Farm Transparency to delete all images in its possession or control now or in the future and not to publish or communicate the images, was a sufficient and adequate remedy.
What does this mean for film makers who capture images while trespassing?
The High Court’s decision confirms that a real property owner may take legal steps to prevent the use of images obtained via trespass or similar tort. The judgment addresses the breadth and limits of equitable remedies. While equity may provide remedies for ongoing extreme harm caused by deliberate wrongdoing, the court must consider the appropriateness of the equitable remedy sought, and will only grant what is necessary to do justice in the circumstances of the case. The practical result of this judgment creates an unusual state in respect of intellectual property rights: while the filmmaker retains copyright in its material, it might be prevented from continuing to possess or exploit it.
Please contact a member of Addisons’ Intellectual Property team if you have any questions.