It was not contested
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.

When WASP became aware of
APM’s more recent use of the
footage it sought to ‘confirm’
ownership of the copyright by asking
Project 64, in March 2018, to enter
into a ‘Confirmatory deed – Copyright
ownership’. This Confirmatory
Deed stated that WASP owned the
copyright in accordance with the
2016 oral agreement. Project 64
and WASP later entered a ‘deed of
assignment’ which stated that to
the extent Project 64 owned any
copyright in the footage it assigned
its rights to WASP ‘with effect from
the date of creation’.

Justice Baird in considering the two
deeds concluded that:
> the ‘Confirmatory deed –
Copyright ownership’ was
of no effect as it had already
been concluded that the oral
agreement did not vest copyright
ownership in WASP, therefore the
confirmatory deed could not alter
the status quo;
> the ‘deed of assignment’ was
generally valid and effective,
however it was subject to the
licence that Project 64 had
granted to APM to use the
footage. This was despite it being
expressed as assigning the right
from the date of creation. The
court found that Project 64 was
the owner of the copyright from
creation, and had granted a
licence to APM. WASP therefore
as successor in title was bound
by the terms of the APM licence
as per section 196(4) of the
Act. As there was no earlier oral
agreement, the deed could not
operate to perfect an earlier
equitable assignment. The
deed also did not operate as an
‘agreement to the contrary’ for
the purposes of section 98(3) of
the Act, and whilst it did operate
as a retrospective assignment
it did not negate the vesting of
copyright in Project 64 or the
operation of section 196(4).

Conclusion This case has highlighted the
importance of having a complete
understanding of how the Copyright
Act applies differently to differing
subject matter including with respect
to ownership. Both the nature of
the work and the circumstances
in which it was created must be
considered in determining the true
owner. With respect to assignment
documentation, whilst it often seen
as an administrative overhead, the
form and interaction with the Act
present challenges which need to
be carefully considered.

Inspire March 2022
The need for correct documentation
11 Melissa Wingard | Special Counsel
BA(Eng&Hist) LLB(Hons) GradDipLegPrac
GradDipAppFin&Inv MCyberSecOps
melissa.wingard@pof.com.au