In McCallum v Projector Films Pty Ltd (Liability Hearing) [2026] FCA 173 the Court considered moral rights.
The introduction to the judgment states
The central dispute between the parties to these proceedings is who is the “principal director” of the documentary film entitled “Never Get Busted!” (the Documentary or NGB). Most (but not all) of the other disputes between the parties depend on the outcome of that central question.
The Documentary examines the colourful life of Mr Barry Cooper, who was at one time a Texan-based narcotics officer during the height of the “war on drugs” in the 1990s. The Documentary has taken over five years to complete. It has already screened at the prestigious Sundance Film Festival in Utah in the United States and had its Australian premiere at the Melbourne International Film Festival. It has also screened at other film festivals. Potential offers from streaming services await. What should have been hailed as a success by all those involved in the making of the Documentary has become the subject of an acrimonious dispute. The key protagonists have betrayed the adage applicable to journalists but equally applicable to filmmakers that they not become part of the story.
As I stated in the interlocutory decision in these proceedings, to lay members of the public, the identification of the dispute as to who is the “principal director” may beg the question as to what is the difference between a “principal director” and a “director” of a film: McCallum v Projector Films Pty Ltd [2025] FCA 903; 187 IPR 191 at [3]. The answer to this question lies in certain interlocking provisions of Pt IX of the Copyright Act 1968 (Cth) (Copyright Act) which deals with “ moral rights ” of attribution in respect of cinematographic works. For the purposes of attribution (and, conversely, proscribing false attribution) of moral rights in respect of a “cinematograph film” where two or more individuals are involved in directing that film, s 191 of the Copyright Act provides that “a reference in this Part to the director ... is a reference to the principal director of the film and does not include a reference to any subsidiary director, whether described as an associate director, line director, assistant director or in any other way” (emphasis added). It can thus be seen that, where there is more than one person who is said to be the director of a film, the attribution of a person as the “principal director” has considerable significance to the moral rights of the relevant person.
On one side of the dispute is the applicant (Mr McCallum) who maintains he is the principal director of the Documentary. He was engaged under successive agreements to be the director of the Documentary, first, under a Crew Agreement entered into on 24 February 2020 and then under the Director’s Agreement which was varied by a Deed of Variation in or about March 2023. Clause 9.1 of the Director’s Agreement provides that, so long as Mr McCallum fulfills his obligations under that Agreement, he is entitled to be credited as the director of the Documentary with the credit, “Directed by Stephen McCallum”. This has not occurred in any version of the Documentary that has been screened to date. Mr McCallum says that the failure to attribute him as a director of the Documentary with the credit “Directed by Stephen McCallum” amounts to an infringement of his moral rights as protected under the Copyright Act, as well as being a breach of cl 9.1 of the Director’s Agreement.
On the other side of the dispute are the respondents. The first respondent is Projector Films; it is the counterparty to the Director’s Agreement. The second respondent is Mr Ngo. Mr Ngo has a unique role in the making of the Documentary. That is because it is common ground that Mr Ngo, together with Ms Erin Williams-Weir (who is Mr Ngo’s wife), created the idea for the Documentary. It is also common ground that Mr Ngo is a producer of the Documentary and also its principal writer. The other producers of the Documentary are Ms Williams-Weir and Mr Daniel Joyce (Mr Joyce). Mr Joyce and Mr Ngo are business partners; they are the company directors and shareholders of Projector Films.
Initially, the respondents contended that it was Mr Ngo alone, and not Mr McCallum, who was the principal director of the Documentary. The respondents advanced this position based on a claim that in January 2022, Mr McCallum said that he would not be performing any of the editing and post-production work involved in making the Documentary, and that all this work was thereafter performed by Mr Ngo. However, the respondents no longer maintain that Mr Ngo alone is the principal director of the Documentary. The respondents now say that both Mr Ngo and Mr McCallum are principal directors of the Documentary: Defence to the Further Amended Statement of Claim (FASOC) [4(f)].
Having taken the position that both men are principal directors, one might have expected the respondents to ensure that both would be attributed as such in the opening and closing credits of the different versions of the Documentary that have been screened. But that has not happened. Instead, the respondents say that even though both men are the principal directors of the Documentary, Mr Ngo is the main one and deserves an enhanced credit relative to Mr McCallum. That has given rise to a dispute as to whether the credit “Directed by” in favour of Mr Ngo and the credit “Director Stephen McCallum” would signify that the former is the principal director of the Documentary to the exclusion of the latter.
One would have also expected that once the respondents admitted that Mr McCallum was a principal director of the Documentary, there would no longer be any dispute that Mr McCallum discharged his duties as a director. But that too has not happened. Projector Films has filed and maintained a cross-claim (in the form of the Amended Statement of Cross-Claim) in which it contends that Mr McCallum did not discharge his duties as a director in breach of the Director’s Agreement.
The issues that fall for determination involve the determination of novel legal issues that have not previously been determined under Australian law such as what it means to be a “director” or “principal director” for the purpose of the Copyright Act, whether Mr McCallum has moral rights under that Act to be attributed as the sole principal director of the Documentary, whether such rights may be waived by a “general waiver” and, if not, whether such a waiver may be regarded as a lawful consent to an infringement of those rights. The resolution of these issues turns upon disputed facts regarding who was more involved in making the Documentary. That has included disputes as tedious as who came up with the idea that Mr Cooper should wear a Hawaiian-styled floral shirt during an interview. The parties have also advanced several subsidiary claims. In all, the following issues arise for determination: (a) the Moral Rights Claims: (i) what is the meaning of the words “director” and “principal director” for the purpose of Part IX of the Copyright Act; (ii) whether Mr McCallum is the sole principal director of the version of the Documentary that was screened at the Sundance Film Festival (the Sundance Version) and in respect of any further or future versions (the Further Versions), including the feature length version which was screened at the Melbourne International Film Festival (the Feature Version), or whether both Mr Ngo and Mr McCallum are principal directors of those Versions; (iii) whether cl 6.2 of the Director’s Agreement amounts to a lawful “general waiver” of all of Mr McCallum’s moral rights under the Copyright Act or, alternatively, whether by that clause Mr McCallum lawfully consented to the infringement of his moral rights under s 195AW of the Copyright Act; (iv) if there has been no general waiver or consent to an infringement, whether Projector Films has infringed Mr McCallum’s moral rights by failing to attribute him as the principal director of the different versions of the Documentary (including by not giving him the credit “Directed by Stephen McCallum”) and falsely attributing Mr Ngo as the sole principal director; and (v) whether Mr Ngo has infringed Mr McCallum’s moral rights under the Copyright Act; (b) the Misleading and Deceptive Conduct Claims: (i) whether Projector Films engaged in misleading and deceptive conduct contrary to s 18 of the Australian Consumer Law (ACL) (as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) by making certain representations: (A) on the website called “IMDb” (historically known as the Internet Movie Database); (B) in the screening of the Documentary at the Sundance Film Festival and the Melbourne International Film Festival; (C) in the promotional materials relating to those festivals; and (D) in communications with Screen Australia; (c) the Breach of Contract Claims: (i) whether Projector Films breached cl 9.1 of the Director’s Agreement by failing to give Mr McCallum the credit “Directed by Stephen McCallum”; (ii) whether Projector Films breached cl 9.2 of the Director’s Agreement by failing to seek Mr McCallum’s agreement as to the inclusion of credits for Mr Ngo as a director of the Documentary; (iii) whether Projector Films has breached cl 3 of the Director’s Agreement, as varied by the Deed of Variation, by failing to pay two invoices issued by Mr McCallum; and (iv) whether Projector Films has breached cl 5 of the Director’s Agreement by failing to provide Mr McCallum with various cuts and edits of the Documentary for his approval; (d) the Cross-Claims: (i) whether Mr McCallum breached cll 2.1(a) and (b) of the Director’s Agreement by failing to discharge his duties as a director; (ii) whether Mr McCallum breached cl 7.1(c)(iv) of the Director’s Agreement by bringing adverse publicity or notoriety to the Documentary and/or Projector Films; and (iii) whether Mr McCallum engaged in misleading or deceptive conduct by making representations or causing them to be made to third parties in relation to the IMDb website and the attribution of directorship of the Documentary.
The parties asked by consent that I only determine issues of liability at this stage, and I agreed to take that course. The questions of relief, remedy and other orders are to be decided separately. I have structured my reasons to address Mr McCallum’s moral rights claims in Part B, his breach of contract claims in Part C, his claims under the ACL in Part D, and Projector Films’ Cross-Claim in Part E.
SUMMARY OF FINDINGS
By way of summary, my key findings are as follows. Having regard to the totality of the facts, and on the proper construction of the words “director” and “principal director”, I am satisfied that Mr McCallum is the sole principal director of the Documentary for the purpose of the Copyright Act. Whilst I am satisfied that Mr Ngo is a director of the Documentary, I am not satisfied that he is a principal director.
For the reasons set out in Part B 10, the text, context and purpose of Part IX of the Copyright Act do not support a “general waiver” of the moral rights recognised by that Part. It follows that cl 6.2 of the Director’s Agreement is not enforceable to the extent that it seeks to operate as a general waiver of Mr McCallum’s moral rights under the Copyright Act. Nor does that clause (properly construed) give rise to a general consent to the infringements of the Copyright Act that Mr McCallum has claimed in these proceedings.
I am satisfied that Projector Films infringed Mr McCallum’s moral right of attribution by failing to attribute him as the principal director of the Documentary by not giving him the credit “Directed by Stephen McCallum” when regard is had to the specific context of the opening and end credits of the Documentary. I am also satisfied that Projector Films has infringed Mr McCallum’s moral right against false attribution by conveying that Mr Ngo is the sole principal director of the Documentary in the specific context of those opening and end credits. I am further satisfied that Mr Ngo also infringed Mr McCallum’s moral rights under the Copyright Act.
In relation to the breach of contract claims advanced by Mr McCallum, I am satisfied that Projector Films breached the Director’s Agreement by: (a) failing to give Mr McCallum the credit “Directed by Stephen McCallum”; (b) failing to seek Mr McCallum’s agreement as to the positioning of the credits that were included in the versions of the Documentary that have been screened which attribute Mr Ngo as a director of the Documentary; (c) failing to pay two invoices issued by Mr McCallum; and (d) failing to provide Mr McCallum with various cuts and edits of the Documentary for his approval.
In relation to Mr McCallum’s ACL claims, I am satisfied that Projector Films engaged in misleading and deceptive conduct contrary to s 18 of the ACL by making or causing to be made: (a) the “First IMDb Representation” and the “Third IMDb Representation” (as defined below); (b) the “Sundance Website Representations” and the “Sundance Version Director Representation” (as defined below); and (c) the “First MIFF Representation” (as defined below).
As to Projector Films’ Cross-Claim, I am not satisfied that Mr McCallum breached cll 2.1(a) and (b) of the Director’s Agreement by failing to discharge his duties as a director. Nor did he engage in misleading or deceptive conduct as alleged by Projector Films. While Mr McCallum did not breach cl 7.1(c)(iv) of the Director’s Agreement by bringing adverse publicity or notoriety to the Documentary, I am satisfied that he did breach cl 7.1(c)(iv) in one respect by bringing notoriety to Projector Films.
