DARE-ing to take on the Kokoda trail… copyright ownership lessons for film makers

Vickii Cotter was a legal volunteer at Arts Law in 2005.

In the case of the Seven Network (Operations) Limited v TCN Channel Nine Pty Ltd [2005] FCA 476, Justice Gyles was faced with determining copyright ownership over a cinematographic film.  Vickii Cotter* provides a summary of the decision.

Facts

DARE (Discipline and Responsibility Encounter), an organisation that helps disadvantaged youths, decided to take a group of students from a high school which had been described as a 'war zone', to a real war zone – the Kokoda trail. 

DARE approached Channel 7 to film the trip and create a one hour TV special for the 60^th anniversary of the Kokoda trail.  Channel 7 committed to screening the documentary on Today Tonight – but the length of the piece was undetermined.  They agreed to send two of their staff to film and record the trip on the basis that DARE would pay for all airfares, accommodation and expenses incurred by Channel 7's staff.

A 10-15 min segment was broadcast by Channel 7 in April 2004. Soon after, DARE approached Channel 7 about obtaining the tapes for "promotional purposes.  Channel 7 agreed, and the tapes were handed over. 

DARE then organised a one hour special with Channel 9. Upon seeing the promotion for the Channel 9 show and recognising some of the footage from the Today Tonight segment, Channel 7 sought an injunction to stop the show. 

Legal issues

The court considered:

1. If Channel 7 and DARE were joint copyright owners of the film;
2. Whether the transfer of the tapes from Channel 7 to DARE meant that copyright passed exclusively to DARE; or whether there were any terms that prevented DARE from using the tapes for commercial purposes (ie: could DARE only use them for promotional purposes); and
3. Did the Channel 9 documentary infringe the copyright in the footage that Channel 7 had previously broadcast?

The outcome

Gyles J held that Channel 7 was a joint owner of the copyright in the film.  Under section 98 of the Copyright Act 1968 the owner of copyright in a film is the maker of the film. Section 22(4)(b) of the Act states that "the maker of the cinematographic film is the person by whom the arrangements necessary for the making of the film were undertaken".  Acknowledging that this case was unusual, he said that on the facts, "the arrangements necessary for the making of the film were undertaken primarily by DARE, but that Seven had played a part.  It was, in effect, a joint venture.

But Gyles J said that once Channel 7 agreed to hand the tapes over, as opposed to their usual practice of recording over the tape after broadcast, DARE acquired all of the property rights, including copyright in the tapes.  He also stated that DARE had provided adequate consideration (via the payment of all expenses for the camera crew) for the tapes.

In relation to whether the channel 9 broadcast would infringe Channel 7's broadcast, Gyles J said in holding that there was no infringement that "the films are so different in nature and structure" and that "it is not surprising that some highlights chosen for a relatively short current affairs film would be sufficiently newsworthy to be independently chosen for inclusion in a longer film".

Issues for film makers

Make sure you get your agreements in writing particularly if you need the help of other people to get your film off the ground.  Even if you are paying for the camera crew's travel, expenses and food, this case illustrates that the other party may be considered to be a "joint maker" of your film (as they may have provided the camera equipment and made arrangements for editing the film – like Channel 7). 

Make sure you include in your written agreement details about who owns the copyright.  If you and the other party decide that you want to be joint makers of the film – discuss it and write it down.  If you want to be joint makers but you want to be able to 'exploit' the film without the consent of the other party – include that in the contract – otherwise it may be accepted that one joint owner cannot exploit copyright without the consent of the other.  If you alone want to own copyright, ensure that any copyright interest that the other people involved may have is given to you.  You must do this in writing and the person giving away their rights must sign the document.