On 13 August 2025, the Full Federal Court delivered judgment in The Game Meats Company of Australia Pty Ltd v Farm Transparency Limited [2025] FCAFC 104. The case concerned covert footage captured by employees of Farm Transparency International (FTI) (following acts of trespassing) at one of the abattoirs operated by The Game Meats Company of Australia (Game Meats).
The Full Court declared that copyright in the images captured by the FTI employees at the abattoir, including a 13 min and 57 second edited sequence, were held on trust by FTI for Game Meats and made orders:
- requiring FTI to execute an assignment in writing of the copyright in the images and footage to Game Meats; and
- requiring FTI to permanently delete all copies of the images in FTI's possession and control.
This marks the first time that the Federal Court has made such declarations in response to an act of trespass.
The general position under the Copyright Act 1968 (Cth) (Copyright Act) is that copyright in a film or a photograph will be owned by the maker of the film and photographer respectively.
In an earlier case involving an abattoir, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, the High Court raised the possibility that where a person creates copyright material, such as a film or photograph, in circumstances involving the invasion of the legal or equitable rights of a plaintiff, that copyright may be held on trust for the plaintiff, and orders could be made requiring the maker to assign copyright to the plaintiff.
In this case, Game Meats applied for orders and declarations to that effect. Justice Jackman found that there was a legal basis for doing so, on the basis that the court can impose a constructive trust "in light of the nature of the defendant’s wrongdoing by which the relevant asset has been obtained."
In this case, the acts of trespassing (on seven occasions) to capture the covert footage, with the intention to gain an advantage that was not lawfully available to FTI and to cause detriment to Game Meats (through adverse publicity), in "contumelious disregard" for Game Meats' rights were found to be a basis for the Court to impose a constructive trust.
This represents an interesting development in Australian law. Seeking an assignment of the underlying copyright will be an important consideration for individuals or companies that are subjected to illegal surveillance or captured on covert recordings. This is because the owner of copyright in a cinematographic film has the exclusive right to:
- make a copy of the film;
- cause the film, in so far as it consists of visual images, to be seen in public, or in so far as it consists of sounds, to be heard in public; and
- communicate the film to the public.
The benefit in holding these exclusive rights is that it provides a basis to prevent the further publication or dissemination of the film by parties other than the person who captured or made the film.
The effect of this case will depend on the circumstances of the intended use. While the owner of the property on which the covert surveillance takes place could be the owner of the copyright, there are exceptions to their exclusive rights. Most relevantly for media organisations, there is a fair dealing exception for certain uses of third-party copyright material for the purposes of, the reporting of news, provided that sufficient acknowledgement is made in certain circumstances. However, even the media organisations will need to be more careful about how they use such footage to ensure their use remains within the exception, as the providers of the footage and images may not be in a position to license the copyright.
While individuals who are subjected to serious invasions of privacy now have an avenue to pursue direct action against the persons who caused that interference through the new tort under the Privacy Act 1988 (Cth), this case provides a precedent for an alternative or additional cause of action and remedies that are not available under the Privacy Act. Relevantly, it provides a means by which the owners of the property on which covert surveillance takes place could have greater legal control over the dissemination of that content.
