McCallum v Projector Films: credits a principal concern!

With thanks to Nico Hahlos, USyd placement student Arts Law, semester 1 2026

Helpfully for film directors and artists across Australia to whom moral rights of attribution attach, a recent blockbuster legal decision has confirmed what we at Arts Law have always known about the nature of moral rights concerning crediting creators: a general “waiver” of moral rights that appears in a contract is not sufficient.

In McCallum v Projector Films Pty Ltd (Liability Hearing) [2026] the Federal Court (Justice Shariff) considered the situation of principal film director Stephen McCallum, and the appropriateness of credits for the film ‘Never Get Busted!’. Following McCallum’s successful filing of an urgent interlocutory injunction to restrain both Projector Films Pty Ltd (the production company), and David Ngo from screening the film in the lead-up to the Melbourne International Film Festival last year; this year, the decision-maker held that blanket ‘waivers’ of moral rights won’t cut it.

In the initial proceedings, Projector Films confirmed that David Ngo was sole director of the documentary, whereas it latterly contended that both he and Stephen McCallum jointly occupied the role.

The court looked at:

1. What the meanings of the words, “director” and “principal director” were for the purposes of Part IX of the Copyright Act.
2. Whether McCallum was 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 Ngo and McCallum were principal directors of those versions.
3. Whether cl 6.2 of the Director’s Agreement amounted to a lawful “general waiver” of all of McCallum’s moral rights under the Copyright Act or, alternatively, whether by that clause McCallum lawfully consented to the infringement of his moral rights under s 195AW of the Copyright Act.
4. If there was no general waiver or consent to an infringement, whether Projector Films has infringed 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 Ngo as the sole principal director.
5. Whether Ngo infringed McCallum’s moral rights under the Copyright Act.

The court found that an application of the ordinary principles of statutory construction the primary intention of Part IX was to recognise the moral rights of an author of creative works.

In this context, a director is the person who “ordinarily has management, control, supervision, and/or responsibility in respect of the creative process and decisions involved in translating a script or idea into the medium of a film. Comparatively to the ‘ordinary’ metric, the principal director was held to be the chief person occupying said functions.

On investigation the court found that McCallum, due to his involvement in pre-production and production, he was principal director, whereas Ngo fell short of this classification.

Unwavering moral rights

The next issue turned on whether McCallum waived his moral rights under the Copyright Act by virtue of cl 6.2 of the Director’s Agreement which purported to “put aside the statutory regime” of attribution and credits. Notably, the court found that such rights were inextricably linked to the concept of authorship.

Ultimately, the court held that moral rights – by virtue of their personal nature, and inability to be legally assigned- were inalienable, and as such could not be waived.

Differentiation between director and principal director

The court found that there is a meaningful distinction between “director” and “directed by” insofar as both forms of credit appear; affirming the existence of ‘degrees’ of attribution. Likewise, the court established that one form of credit can take preference over time.

Given the films use of two forms of accreditation, and the fact that one consistently appeared above the other, the court concluded that McCallum’s rights to attribution were infringed.

Facilitation of breach by third party

The subsidiary allegation concerned whether Ngo had authorised Projector Film’s infringement of his moral rights. A breach of s195AO and s195Ap of the Copyright Act. Relevantly, for the purposes of investigating this claim, Ngo was classified as a secondary offender.

With consideration to his power to prevent the infringement, the nature of the relationship between the infringers, and the reasonable steps taken to avoid the doing of the act, the court found that due to affixing his own name to convey he was principal director Ngo authorised the act.

Summary

Ultimately, the court clarified the operation of moral rights in film production by emphasising that authorship pursuant to Part IX of the Copyright Act 1968 (Cth) is contingent on exercising primary creative control over the film-making process. Likewise, through ordinary rules of statutory interpretation, the separation between director and principal director was elucidated by reference to the degree of responsibility held. Furthermore, the court established that moral rights were incapable of being alienated- whether by consent or legal extinguishment. Finally, the majority elucidated the existence of ‘degrees’ of authorship, suggesting that all forms of accreditation are not necessarily equivalent in value.

Links to our previous reporting: https://www.artslaw.com.au/moral-rights-and-films-never-get-busted/ (and see L.Buckingham, McCallum v Projector Films (The Moral of the Story: Credit or Get Busted!) issue 142, December 2025, at p. 36 of the Intellectual Property Forum, the journal of the IP Society of Australia and New Zealand).