McCallum v Projector Films: rolling the right credits? Moral rights and attribution in film
McCallum v Projector Films Pty Ltd (Liability Hearing) [2026] FCA 173
Key takeaways
Consent, not waiver: The Copyright Act 1968 (Cth) (the Act) allows individuals to consent to specific infringements of their moral rights, but does not permit a general waiver or consent of these rights. Contractual clauses that provide blanket waiver of moral rights, rather than operating within the statutory consent framework, will be unenforceable in Australia.
Determining the moral rights of film directors: In the filmmaking context, moral rights under the Act are conferred on the director(s), producer(s), and screenwriter(s). In circumstances where there is more than one director, moral rights are conferred on the 'principal director', which requires a detailed analysis of each person’s role and contribution.
Background
Mr McCallum (Applicant), a film director with 20 years’ experience, was engaged to direct the documentary film ‘Never Get Busted!’ under a Director’s Agreement with Projector Films Pty Ltd. Mr Ngo is a director and shareholder of Projector Films, who served as producer, writer and claimed co-creator of the documentary’s original concept (together, the Respondents).
Clause 9.1 of the Director’s Agreement provides that the Applicant be credited as the director of the documentary with the credit ‘Directed by Stephen McCallum’, if he fulfilled his obligations under the Agreement. Clause 6.2 of the Director’s Agreement contained the following wording:
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. To the extent that the foregoing waiver is not enforceable in any jurisdiction of the world the Director unconditionally and irrevocably consents, for the benefit of the Producer and all of its assignees, licensees and sublicensees to material alterations to the Documentary (including, without limitation, any copying, editing, adding to, taking from, adapting and / or translating the Documentary in any manner or context) for any purpose.
The documentary was screened at the Sundance Film Festival in Utah on 28 January 2025. In the promotional materials for the screenings, Mr Ngo was credited as the director with no mention of the Applicant. The Respondents also caused the Applicant's 'Directed by' credit to be removed from the documentary's IMDb page, leaving Mr Ngo with the sole directing credit. In the opening and closing credits of the screenings, the Respondents listed the Applicant as ‘Director’ while using the clause 6.2 wording in favour of Mr Ngo (ie ‘Written and directed by David Anthony Ngo’ and then, ‘Director – Stephen McCallum’).
In July 2025, the Applicant was notified that the Australian premiere of the documentary would occur at the Melbourne International Film Festival (MIFF). The Applicant filed an interlocutory application in the Federal Court seeking to prevent the MIFF screening without the principal director credit being given to the Applicant. The Court granted this application and prevented the Respondents from causing the documentary to be seen or promoted unless it contained the credit ‘Directed by Stephen McCallum’ and did not contain the credit ‘Directed by’ in favour of Mr Ngo.
In the current proceedings, the Applicant alleged that the Respondents’ failure to credit him using the wording from the Director’s Agreement amounted to:
- infringement of his moral rights protected under the Act;
- misleading and deceptive conduct under the Australian Consumer Law; and
- a breach of clause 9.1 of the Director’s Agreement.
Claims and issues – moral rights
Principal director: Section 191 of the Act confers moral rights on the director of a film or, in cases where there are two or more directors, to the ‘principal director(s)’ of the film. The Applicant claimed he was the sole director of the documentary and therefore had a moral right to be attributed as the director. The Respondents contended that Mr Ngo and the Applicant were both principal directors.
Waiver of moral rights: in their defence, the Respondents claimed that the Applicant had waived his moral rights under clause 6.2 of the Director’s Agreement.
The Court was required to resolve the following issues:
- What is the meaning of the words ‘director’ and ‘principal director’ for the purpose of Part IX of the Act?
- Who is the principal director(s) of the documentary?
- Does clause 6.2 of the Director’s Agreement amount to a lawful ‘general waiver’ of all of the Applicant’s moral rights under the Act or, alternatively, by that clause did Mr McCallum lawfully consent to the infringement of his moral rights under s 195AW of the Act?
- If there has been no general waiver or consent to an infringement, have the Respondents infringed the Applicant’s moral rights by failing to attribute him as the principal director of the documentary and falsely attributing Mr Ngo as the sole principal director?
Decision
The Court found that the Applicant was the sole principal director of the documentary and that the Respondents infringed the Applicant’s moral rights by not giving him the credit ‘Directed by Stephen McCallum’ and by attributing Mr Ngo as the sole principal director.
The Court held that clause 6.2 of the Director’s Agreement was unenforceable to the extent that it sought to waive Mr McCallum’s moral rights. In the alternative, clause 6.2 also did not constitute a relevant or effective consent to the Respondents’ infringements.
Court’s reasoning – key points
Distinction between director and principal director
Having regard to the dictionary definitions of ‘director’ and ‘principal director’, and statutory purpose and context, the Court found that Mr Ngo was not a principal director because he did not have ‘chief or main… management, control, supervision, and/or responsibility over the creative process to translate the idea of the documentary into the medium of a film’ . While Mr Ngo had a unique and important role in creating the idea for the documentary, writing and producing, and taking on a directorial role towards the end of production, the Court found that these separate roles cannot be conflated or interpreted to mean that Mr Ngo exercised overall creative control and responsibility.
Moral rights are inalienable
The Court confirmed that moral rights under sections 195AN and 195ANB of the Act are personal rights vested in the individual which, unlike copyright (which is property right), cannot be assigned, transferred, devolved by operation of law, or waived. This view is supported by Parliament’s comprehensive drafting of consent provisions (rather than waiver provisions) in sections 195AW, 195AWA, and 195AXJ. The Court determined that Parliament’s intention was to ‘enact a specific regime by which the holder of a moral right could consent to an infringement of their rights’. Therefore, any clause seeking to waive or renounce moral rights in Australia is inconsistent with the intention of the Act to recognise and protect moral rights.
Consent
The Court determined that the first sentence of clause 6.2 (which ‘waive[d] all moral or other similar rights’) did not amount to the Applicant's consent to infringement of his moral rights but instead was a general and blanket waiver that was plainly unenforceable. The deliberate use of ‘waiver’ in the first sentence and ‘consent’ in the second indicated a contradistinction in legal concepts that undermined the Respondents' position. Moreover, while the Act allows individuals to consent to infringement of their moral rights, the consent provided by the Applicant in the second sentence was confined to ‘material alterations’ to the documentary and did not extend to the right of proper attribution.
This article was written with the assistance of Eva Cotsell, Law Graduate.
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