A film is not a photo
and other lessons from
the Copyright Act
The Federal Circuit Court decision in Whitsunday Aerial Solutions
Professionals v Emprja 1 has served as a reminder of three key
things to remember when dealing with copyright works...

(1) The Copyright Act 1968 (Cth)
applies differently to Works
and Subject Matter other
than Works. It is critical to
understand the nature of the
work that you are dealing with
and the circumstances in which
copyright right arose.

(2) There is a significant benefit
in documenting commercial
agreements at the outset rather
than litigating over them later on.

(3) Assignments are important
documents and need to be
treated as such. It is important to
understand who has ownership
rights and how an assignment
of them is to operate.

Inspire March 2022
Background 10
In this case Whitsunday Aerial
Solutions Professionals Pty Ltd
(WASP) claimed that Emprja Pty Ltd,
trading as Abel Point Marina (APM),
infringed its copyright in film footage
of the 2016 Clipper Round the World
Race that was taken by a drone
owned and operated by WASP.

In 2016, APM was successful in
its proposal to host a race stopover
for the Clipper Round the World
Yacht Race. As part of hosting the
race stopover APM held a welcome
party for the crews of the yachts
participating. In late 2015, Project 64
Pty Ltd (Project 64) had acquired a
helicopter business called Helitaxi
which provided scenic flights out
of APM. Project 64 was looking
to promote the Helitaxi business
and agreed with APM that Helitaxi
would be a co-sponsor of the
welcome party.

As part of that sponsorship
arrangement, Project 64 agreed
to obtain drone footage of the
yacht stopover at APM, amongst
other things. Project 64 then
commissioned WASP to take the
drone footage.

The agreement between APM and
Project 64 as to sponsorship was not
documented, and neither was the
agreement between Project 64 and
WASP. WASP gave the 2016 Clipper
drone footage to Project 64 without
any specified limitation, and with no
watermarks as to ownership included
on the footage. Project 64 then
provided the same footage to APM,
again without any restrictions as to
use of the footage. WASP claimed
that that there was an oral agreement
between Project 64 and WASP, under
which WASP owned all the copyright
in the footage. As Project 64 was
only permitted to use the footage
to promote Helitaxi, APM’s licence
to use the footage was limited to
promoting the 2016 race.

When APM started using the
footage to promote the 2018
Clipper Round the World Yacht
Race, WASP claimed infringement
and commenced the proceedings
against APM.

Copyright in the
drone footage
It was not contested by the parties
that the drone footage was a
cinematograph film within the
meaning of the Act, however WASP
asserted that as it had created the
footage, it was the owner.

1 Justice Baird did not agree.

She found that WASP had been
commissioned by Project 64 to make
the footage within the meaning of
s 98(3) of the Act. Section 98(3)
provides that in the absence of
an agreement to the contrary,
the commissioning party will be
automatically deemed to be the
copyright owner of a cinematograph
film. Justice Baird found that
WASP had not established on the
balance of probabilities that there
was an agreement to the contrary
regarding ownership of copyright,
and therefore s 98(3) of the Act
operated to make Project 64 the
owner of the copyright. Having
considered the correspondence,
invoices, witness statements and
actions of the parties, Justice Baird
was not satisfied that there was
any agreement or even a discussion
as to the ownership of copyright.

Rather, at the time the footage was
created the parties had not even
turned their minds to the question
of copyright ownership.

WASP further asserted that even if it
did not own copyright in the footage,
the footage was only commissioned
by Project 64 for a limited purpose,
being that of promoting HeliTaxi, and
APM’s involvement in the Clipper
Round the World Yacht Race. Justice
Baird rejected this claim noting that
WASP did not include any copyright
notice or claim in the footage they
delivered, and no limitations were
discussed at the time. Project 64
commissioned the work as part
of its sponsorship of the APM
welcome party and the footage was
passed onto APM without limitation.

Whitsunday Aerial Solutions Professionals Pty Ltd v Emprja Pty Ltd [2021] FCCA 1578