On 6 August 2025, the Federal Court of Australia (the Court) ordered that Projector Films Pty Ltd and director David Ngo (the Respondents) be stopped from promoting, causing to promote or authorising the Melbourne International Film Festival (the MIFF) to show the documentary titled "Never Get Busted!" unless the Applicant Stephen McCallum was attributed as "Principal Director."
The order came after Mr. McCallum discovered that promotional and other materials relating to the documentary for the MIFF referred to Mr. Ngo as the sole "Director" of the documentary and that there were no references to Mr. McCallum as director, despite him acting in a director's capacity. The Respondents had also previously failed to attribute Mr. McCallum as Principal Director in the documentary showings and promotional materials at the Utah Sundance Film Festival and Los Angeles Dances with Films Festival. He had also been excluded from attendance at the Utah premiere itself.
Mr. McCallum applied for urgent interlocutory relief from the court ahead of the MIFF. He argued the Respondents had infringed his moral rights and engaged in misleading and deceptive conduct by failing to attribute him as the "Principal Director" of the documentary and by falsely attributing Mr. Ngo as Principal Director.
Pursuant to Part IX of the Copyright Act 1968 (Cth), where there is more than one director of a film, only one can be considered the "Principal Director" and "author" of the film. An "author" has the following three moral rights:
- Right of attribution of authorship.
- Right not to have authorship falsely attributed.
- Right of integrity of authorship.
Mr. McCallum originally sought relief, requiring recognition in the documentary that the "Principal Director" attribution was subject to legal proceedings. The Court recognised that while this would have accurately depicted the state of affairs, the commercial implications of doing so would impact on the Respondents' prospects of selling rights to third parties.
The Court determined that there was a serious question to be tried, and in doing so, it considered the Applicant's Directors Agreement, which contained an intention for Mr. McCallum to be the Principal Director but also contained a moral rights waiver clause.
The Court also said the balance of convenience favoured the granting of an injunction and that the prejudice Mr. McCallum would suffer would be greater than any prejudice suffered by Mr. Ngo. The Court also recognised the Respondents had made a conscious choice to exclude mentioning Mr. McCallum in any previous screenings or promotional materials.
Despite the importance of moral rights in copyright law in
ensuring authors' creative contributions are acknowledged,
moral rights litigation is extremely rare and there have only been
a handful of Australian cases since the enactment of the
Copyright Amendment (Moral Rights) Act 2000.
We will provide a further update once a decision for the final
hearing commencing on 10 September 2025 is handed down.
The full judgment can be accessed here.
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