Never Get Waived: Federal Court Rules Blanket Moral Rights Waiver Clauses are Not Enforceable in Australia
The Federal Court of Australia has delivered a landmark decision in McCallum v Projector Films1, finding that general moral rights waivers for copyright works are not enforceable.
The decision follows an urgent interlocutory injunction in the Federal Court last year brought by Stephen McCallum, a director of the documentary Never Get Busted! which follows the life of a former Texan narcotics officer turned decriminalisation activist. The injunction restrained the documentary’s other director, David Ngo, and production company Projector Films, from showing the documentary at the Melbourne International Film Festival unless director Mr. McCallum was credited as its “Principal Director” (see our post here).
Who is the “Principal Director”?
In the Court’s final decision, Justice Shariff found that Mr. McCallum is the “Principal Director” of the documentary for the purposes of the Copyright Act 1968 (Cth) (Act). He has the three “moral rights” pursuant to Part IX of the Act, being the right of:
- attribution of authorship
- not to have authorship falsely attributed, and
- integrity of authorship.
In comparison, Mr. Ngo is simply a director of the documentary and does not have these moral rights.
Justice Shariff held Projector Films and Mr. Ngo infringed Mr. McCallum’s moral rights by failing to attribute him as the “Principal Director” and by falsely attributing Mr. Ngo as Principal Director of the documentary. Projector Films also breached contractual obligations to Mr. McCallum and engaged in misleading and deceptive conduct, including through conduct on its IMDb page.
No such thing as a blanket moral rights waiver
The most legally significant aspect of the decision is the Court’s treatment of purported moral rights waivers. The Court referred to clause 6.2 of Mr. McCallum’s Director’s Agreement for the documentary, which states:
The Director waives all moral or other similar rights in respect of the Documentary or the Development Materials that the Director may be entitled to under the laws of any jurisdiction throughout the world in perpetuity.
Projector Films and Mr. Ngo argued at trial that clause 6.2 operated as a general waiver of all of Mr. McCallum’s moral rights and that he consented to infringement of his moral rights. The Court rejected that argument and found:
- the text, context and purpose of Part IX of the Act do not support the concept of a blanket waiver of moral rights;
- any consent to acts by moral rights holders that would otherwise infringe moral rights must be specific, informed and directed to identifiable conduct; and
- clause 6.2 did not amount to a valid consent to infringement of Mr. McCallum’s moral rights.
This decision confirms that the statutory provisions in Part IX of the Act are the most appropriate means of dealing with consent to infringements of moral rights.
While the dispute arose in the context of a documentary film, the Court’s reasoning has much wider implications. Many standard-form IP agreements include language stating that the creator “waives” their moral rights or agrees not to enforce them. This decision confirms those clauses are on shaky ground.
By Chris Round and Laura McFadzean