The Federal Court of Australia recently delivered judgment in McCallum v Projector Films Pty Ltd (Liability Hearing) [2026] FCA 173.
The case decided a dispute between two directors of a documentary film, Mr Ngo and Mr McCallum, in which McCallum claimed that he was not properly attributed for his role in directing the film.
The judgment has developed the Australian case law relating to moral rights, a relatively new concept in Australia incorporated into the Copyright Act 1968 (Cth) (the Act) at the beginning of the 21st century.
The decision also serves as a reminder of the limitation of the moral rights regime and the importance of the Australian Consumer Law (the ACL) in ‘policing’ an author’s moral rights.
The case centred around the film ‘Never Get Busted! ’, a documentary about a Texan narcotics officer turned activist against police misconduct named Barry Cooper.
Cooper’s activist projects included conducting ‘stings’ on the police, such as planting fake drug evidence and cash, calling the police to report the drugs, and recording the officers who chose to pocket the cash and destroy the drug evidence. Cooper also provides advice on YouTube about US police tactics and how to avoid them. After an unsuccessful run for Texas Attorney General as a Libertarian in 2010, Cooper moved to Brazil, and later the Philippines.
McCallum was engaged by Projector Films (Projector) to work on the film, first under a ‘Crew Agreement’. McCallum and Projector then entered a further agreement and varied that agreement in March 2023 to include a clause specifying that, so long as Mr McCallum fulfilled his obligations under the Agreement, he was entitled to be credited in the film’s credits with the phrase: ‘Directed by Stephen McCallum’(Agreement).[1]
Projector ran promotional materials for the film and screened the film, in some instances only crediting McCallum as one of two directors, alongside David Ngo, the film’s creator. In other instances (including at a showing at Sundance Film Festival), McCallum was not credited as a director at all. Projector also changed the credits for the film on the website IMDB to attribute the credit ‘Directed by’ to Ngo rather than McCallum.[2]
Before the final hearing of the matter, McCallum obtained an injunction against Projector to prevent the film being shown at the Melbourne Film Festival. McCallum obtained the injunction on the basis that he was not being credited as the film’s ‘Principal Director’, in breach of his moral rights under the Act, in breach of the ACL, and in breach of the Agreement.[3]
McCallum claimed he was entitled to be credited as the film’s principal director.
Projector’s position was that both Mr Ngo and Mr McCallum were the principal directors, but that Ngo was the ‘main’ principal director and so should have an enhanced credit over McCallum.
In the liability hearing, his Honour Justice Shariff had to decide the following issues:[4]
Under the Act,[5] authors[6] of certain works are afforded moral rights in their works, which are:
Under the Act, an author of a film includes the director, the producer and the screenwriter of the film.[8]
Only principal directors, producers and screenwriters will be entitled to moral rights in a film. However, there may be multiple principal directors who will each have moral rights under the Act.[9] The Act does not define the terms director, producer and screenwriter.[10]
In the present case, Justice Shariff held that the person(s) entitled to be credited as principal director of a film under the Act will vary from project to project, but can ordinarily be defined in contrast with the producer or screenwriter as:
the chief or main person amongst others who has management, control, supervision, and/or responsibility over the creative process to translate a script or idea into the medium of a film [emphasis added].[11]
Projector had accepted that McCallum was a principal director within the meaning of the Act but argued McCallum did not need to be credited as a principal director because Mr Ngo created the idea for the film.
Justice Shariff rejected Projector’s argument that under the Act the principal director is ‘the central author and creative contributor of the film […] with ultimate creative control’. Justice Shariff held that such factors ordinarily indicate that such a person is the principal producer or screenwriter. Justice Shariff noted that Projector’s argument relied on the ‘romanticised [theory of the] auteur’ which may be useful in film criticism, but could not be the relevant test given the Act makes a distinction between directors, producers and screenwriters.[12]
Accordingly, while Ngo was the primary creator of the film, that did not make him a principal director, nor did it displace McCallum’s role as principal director.
As Projector had conceded that McCallum was a principal director, the question for the Court was whether Ngo was also a principal director.
The Court held that the question was not to be decided only by way of the Agreement between the parties, but by reference to the actual ‘role, duties and work’ done by each party.[13] The Court therefore had to consider all the evidence available about each party’s role in the process of making the film.
In considering the evidence, Justice Shariff concluded that McCallum was the sole principal director and Ngo was not a principal director.[14] In reaching this decision, Justice Shariff noted:
Having regard to the above, the Court was:
not satisfied that [Mr Ngo] was the chief or main person who had management, control, supervision, and/or responsibility over the creative process to translate the idea of the Documentary into the medium of a film.[19]
Projector argued that under clause 6.2 of the Agreement, Mr McCallum had either waived his moral rights under the Act or consented to their infringement.
Clause 6.2 of the Agreement read:
The Director waives all moral or other similar rights in respect of the Documentary… that the Director may be entitled to under the laws of any jurisdiction throughout the world in perpetuity […]
To the extent that the foregoing waiver is not enforceable in any jurisdiction […] the Director unconditionally and irrevocably consents […] to material alterations to the Documentary […] for any purpose.[20]
The extent to which authors may waive their moral rights under the Act has not previously been the subject of extensive judicial commentary in Australia.
While moral rights have been recognised in European jurisdictions since as early as 1813, and in the Universal Declaration of Human Rights of 1948, moral rights were not recognised in Australia until their incorporation in an amendment to the Act at the beginning of the 21st century.[21]
Whereas copyright is an economic right, which can be sold or given away, moral rights are personal and non-transmissible. Successful claims for moral rights often involve plaintiffs being awarded very little in monetary damages. However, being correctly attributed for works can have great economic importance to authors, especially given works may take years of effort to create, as was the case in ‘Never Get Busted!’, which was created over five years and involved McCallum foregoing other commercial work while receiving a small salary from Projector.[22]
Justice Shariff held that, because the purpose of the moral rights is ‘to recognise what is said to be the inalienable bond or relationship between an author and his or her work’, it would be inconsistent with the Act to permit a waiver of moral rights.[23] Justice Shariff gave a ‘simple example’:
Leonardo da Vinci painted the Mona Lisa. No one could deny that he is the artist and therefore the author of that work. It is a question of fact, and, in this example, one of unassailable fact.[24]
Although the original draft of the amendment to the Act permitted written waivers of moral rights to deal with works created by employees during their employment, Parliament ultimately decided on the approach that:
[…] there may be occasions when an author will decide not to exercise and enforce some or all of his or her moral rights. In this case, the Bill provides that an author may give written consent to any or all acts or omissions that would otherwise constitute an infringement of their moral rights.[25]
The waiver was therefore unenforceable, and it fell to the Court to decide if McCallum consented to the infringement. The Court rejected Projector’s argument that the references to ‘waiver’ in the first sentence of clause 6.2 should be read as meaning ‘consent’. While the Court may rectify the literal meaning of words, this can only be done where the literal meaning of the words would be absurd, and it is self-evident what the objective intention of the parties to the contract was.[26] This was not such a case.
Furthermore, the second sentence of the clause explicitly contained the word ‘consent’ in relation to ‘material alterations to the Documentary’. The use of ‘consent’, combined with the words ‘to the extent the foregoing waiver is not enforceable’ made it clear that the use of ‘waiver’’ in the first sentence was the intention of the parties.[27]
Interestingly, the issue of whether any conduct of McCallum such as agreeing to Clause 6.2 of the Agreement may constitute an estoppel was not addressed by the parties.[28] This issue, therefore, remains unanswered.
When the film was premiered at Sundance, the film’s credits listed McCallum as a ‘Director’ and stated the film was ‘Written & Directed by David Anthony Ngo’.
The Court found that, when combined with the position of the latter credit as higher in the credits, the effect of this was to give Mr Ngo the more ‘prestigious’ position of principal director.[29]
Thus Justice Shariff held that McCallum’s right of attribution had been infringed. Ngo was also found to have authorised the infringement by Projector.[30]
In many films and other works marketed for sale, an infringement of moral rights may well amount to a breach of the prohibitions against misleading or deceptive conduct contained in the ACL. Indeed, that was the case here,[31] and the case shows that the ACL may be an important tool for authors to police their moral rights where the Act cannot do so.
Because the Act is limited to infringements of moral rights in Australia, the Act is of little help in remedying such conduct that occurs overseas.[32] Most films, books, and recorded music are distributed for sale outside of the country that those works were authored in. In many cases, such works are also advertised globally.
While the Copyright Act might not cover overseas conduct, the Competition and Consumer Act 2010 (Cth) provides that the ACL applies to ‘trade and commerce […] between Australia and places outside Australia [emphasis added]’, as well as trading or commercial conduct engaged in overseas by corporations incorporated in Australia, Australian citizens, and people ordinarily residing in Australia.[33]
More fundamentally, the moral rights regime only regulates the treatment of an author’s moral rights within works. In this case, McCallum also alleged that there were also false representations in respect of McCallum’s moral rights on the website IMDb, on Vimeo, at Sundance Film Festival, the Melbourne Film Festival, and to Screen Australia.
While McCallum’s claims against Projector under the Act were brought in relation to the credits given to McCallum and Ngo in two versions of the film,[34] McCallum had to bring his claims in relation to the credit he was given on IMDB, Vimeo, Sundance, Melbourne Film Festival and in Projector’s conversations with Screen Australia, under the ACL.[35]
In the social media age, a failure to credit an author on sites such as IMDB (or Instagram, TikTok etc.) may be what causes the most damage to an author’s moral rights.[36] Under the ACL, an author may be able to pursue those damages. They may also be able to seek an injunction preventing a defendant from making misrepresentations which diminish an author’s credit both in Australia and overseas. By contrast, an injunction under the Act would be directed at conduct relating to the treatment of the author in the infringing work itself.[37]
Finally, a claim under the ACL may be easier to make out in some cases than a claim under the Act. An author can consent under their contract to acts and omissions that would otherwise constitute an infringement of their moral rights, and many contracts do contain such consents. However, where such conduct also constitutes misleading or deceptive conduct, such a claim in misleading or deceptive conduct would still be available; as a general principle, “once misleading or deceptive conduct is shown, the [ACL] prevails" over a contractual disclaimer or exclusion clause.[38]
Likewise, whereas the Act requires a plaintiff to prove a defendant intentionally caused the relevant infringement of moral rights, a claim under misleading and deceptive conduct only requires that the conduct engaged in is misleading and does not require that the defendant intended to engage in misleading and deceptive conduct.[39]
Courts will decide who holds the title of principal director by reference to the work each person working on a film undertakes and whether that work shows they are exercising control over translating a script or idea into the medium of a film. The relevant question is not whether the person created the idea for the film.
Courts will not only look to the agreement between the parties to determine the principal director. Agreements that try to waive a person’s moral rights will be unenforceable in that respect but will also conduct an analysis of the actual role, duties and work performed by the parties.
While moral rights create positive obligations to properly attribute authors, authors may find that framing claims for infringement of their moral rights in misleading or deceptive conduct may have practical and strategic advantages.
The relief that McCallum will obtain for Projector’s conduct is yet to be decided. We will watch this space for notable developments.
Authors: David Hing, David Stano and Preethika Mathan
Image Credit: Brands&People via Unsplash (obtained under the Unsplash License).
[1] McCallum v Projector Films Pty Ltd (Liability Hearing) [2026] FCA 173 (Liability Judgment) at [4]
[2] Liability Judgment at [9] and [489]
[3] McCallum v Projector Films Pty Ltd [2025] FCA 903 (Injunction Judgment)
[4] Liability Judgment at [9]
[5] Copyright Act 1968 (Cth) (the Act), ss 193, 195AC and 195AI
[6] Performers are also afforded moral rights under Part IX Division 2A the Act. However, the moral rights regime for performers differs from the regime for ‘authors’ in some respects because of differences between works that are recorded in a material form and works that are exclusively ‘performed’. For concision, this article only directly addresses the moral rights regime in respect of authors.
[7] Broadly, treatment that ‘distorts’ a work in a way that harms the author’s reputation; see s 195AJ of the Act.
[8] s 191 of the Act
[9] ss 189, 191(1) and 195AZJ of the Act.
[10] As noted in Liability Judgment at [173]
[11] Liability Judgment [180]
[12] Liability Judgment [183]-[184]
[13] Liability Judgment [181], [191]-[192]
[14] Liability Judgment [547]-[549]
[15] Liability Judgment [216]
[16] Liability Judgment [230], [258], [376]
[17] Liability Judgment [197]
[18] Liability Judgment [398]
[19] Liability Judgment [534]
[20] Liability Judgment [640]-[641]
[21] Copyright Amendment (Moral Rights) Act 2000 (Cth)
[22] Liability Judgment [328]
[23] Liability Judgment [659]
[24] Liability Judgment [673]
[25] Explanatory Memorandum to the Copyright Amendment (Moral Rights) Bill 1999 (Cth), cited in Liability Judgment at [676]
[26] Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd [2019] NSWCA 11; see Liability Judgment [696]
[27] Liability Judgment [693] and [696].
[28] Liability Judgment [593]
[29] Liability Judgment [755]-[773]
[30] Liability Judgment [801]-[803]
[31] Sections 18 and 29 of the ACL being Schedule 2 of the Competition and Consumer Act 2010 (Cth); Liability Judgment [884], [897], [902], [904] and [914]; see also Injunction Judgment [58]
[32] s 195AX of the Act
[33] ss 4 and 5(1)(c), (g), (h) and (i) of the Competition and Consumer Act 2010 (Cth)
[34] Liability Judgment [755] to [777]
[35] Liability Judgment [854]
[36] The damage may be loss of opportunity; orders in relation to McCallum’s damages are forthcoming.
[37] It may also be directed at the importation of infringing works for sale, or the distribution of works for sale; see ss 195AU, 195AV and 195AZA of the Act
[38] Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 at [160].
[39] This only applies to primary liability for misleading and deceptive conduct. Where a plaintiff alleges that a person ‘aided and abetted’ the misleading and deceptive conduct, the plaintiff must show that person had knowledge that the conduct was misleading and deceptive; see Yorke v Lucas [1985] HCA 65, which was itself considered in the Liability Judgment at [929].
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