Copyright and constructive trusts: the curious case of Game Meats Company of Australia Pty Ltd v Farm Transparency International Ltd

Photo by Jumpei Mokudai on Unsplash

By Ryan J Leck, Arts Law paralegal

Introduction

Variously described as a ‘win’ for an abbatoir using copyright to silence or an example of creative legal interpretation facilitating the use of copyright as a sword rather than its usual shield-like character, the recent case of Game Meats Company of Australia Pty Ltd v Farm Transparency International Ltd [2025] FCAFC 104(Game Meats) has broken new ground. The Court’s finding that copyright in ‘cinematograph films’ created in the context of trespass is to be held on constructive trust for the property-owner is a novel and unexpected outcome The Court in Game Meats compared the act of trespassing to create a film to fraud or thievery, using this reasoning to find that the remedy of constructive trusteeship be applied. What this means is that a transfer of copyright (the legal terminology is an assignment) may be ordered by a Court if the copyright subject matter at issue (in this case, film) was made via an act of trespass. By extension, implications for some forms of street and protest art may be troubling to many in the arts.

This article briefly summarises the legal case and illustrates the reasoning behind the outcome. 

The facts

The Game Meats Company (GMC) first commenced action against Farm Transparency International (FTI) in 2024. FTI had covertly entered GMC’s Eurobin abattoir to film a 14-minute video, aiming to educate the public on animal exploitation and suffering in farms. It had done this despite signs saying, “Restricted Area. Do Not Enter.” FTI later sent the footage to the Department of Agriculture, Fisheries and Forestry, as well as a local television news network, which ran the story but did not publish the footage.

Although GMC sought injunctive relief from FTI to restrain them from publishing the film, and a constructive trust over the copyright in the film, the primary judge ultimately denied GMC both. Instead, the primary judge awarded GMC $130,000 in damages.

GMC appealed the decision this year.

Findings on appeal

Referring to the case of Australian Broadcasting Corporation v Lenah Game Meats (Lenah Game Meats), the Court noted that property (such as copyright in the film) obtained through fraud and/or thievery imposes a constructive trust on the fraudster or thief. The Court also noted that a constructive trust would be imposed where a mistaken payment is sent, and the recipient becomes aware of the mistake.

Relevantly, even though there was no actual fraud or thievery involved, the trespass onto GMC’s property was similarly unlawful, particularly where FTI intended to use the footage for a purpose that would adversely affect GMC’s business. As such, the Court found it appropriate to impose a constructive trust on FTI for copyright of the film.

FTI’s argument

FTI argued against the application of Lenah Game Meats, claiming that copyright served as a “sword”, a right to prevent others from doing things legally, such as reproducing or communicating works. They emphasised that GMC was not seeking to enforce the usual incidents of copyright ownership, such as reproduction, but attempting to suppress material it found unfavourable. According, FTI claimed that it was merely exercising a general liberty to publish information, one that they argued was available to all members of the public.

Jackman J’s response

Jackman J rejected the argument, pointing to s 68 of the Copyright Act, which expressly grants the copyright owner positive rights, a ‘shield’ that grants the owner the exclusive right to make copies, to cause the film to be seen or heard in public, to communicate it to the public, and crucially, to authorise others to do those acts.

Because FTI had exercised (and were intended to continue exercising) these rights, their conduct fell squarely within the ambit of copyright ownership. To argue otherwise would be contrary to the Copyright Act. He further held that equity would not allow FTI to continue to assert beneficial ownership of the copyright of the film, especially considering the trespass.

Ultimately, FTI was ordered to hold the copyright of the footage on constructive trust for GMC, ordered to assign copyright in the footage to GMC, restrained from publishing the footage, and ordered to permanently delete all copies of the footage.

Conclusion

Depending on your views, this case may serve as valuable precedent for those who feel they have had their privacy rights violated, particularly where copyright issues are also concerned. Although typically used as a ‘sword’, this case illustrates that copyright may be just as effective as a ‘shield’, protecting those who have had their sensitive material publicised. However, for others, this outcome may be concerning in terms of the impact on future cases and decisions where the public interest ought to be a persuasive factor as well as artists’ rights in a purist sense It also raises questions on moral rights ownership in such sensitive material.