: Copyright in photographs taken by trespassers

Copyright in photographs taken by trespassers

Leanne O'Donnell
Federal

Another long-running legal case came to a close in March this year with judgment delivered in the New South Wales Supreme Court in the matter of Windridge Farm Pty Ltd v Grassi and Ors [2011] NSWSC 196 (28 March 2011).

In 2006, piggery owners Windridge Farm (‘Windridge’) sued Animal Liberation executive director Mark Pearson, over footage filmed by activists at its piggery, Wonga Piggery at Young, NSW. In addition to a claim for trespass to property, Windridge ran the novel argument that it owned the copyright in the images of its premises, taken by the activists without its permission. Windridge was successful in its trespass claim and was awarded general damages in the sum of $15 000 and special damages, namely, veterinary costs: $1625.45.

In accordance with the provisions of the Copyright Act 1968 (Cth), copyright is personal property, and ownership of that copyright rests, in general, in the maker. Windridge relied on Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, in which Gummow and Hayne JJ stated that if a work was made in circumstances involving the invasion of the legal or equitable rights of the property owner:

it may then be inequitable and against good conscience for the maker to assert ownership of the copyright against the plaintiff and to broadcast the film. The maker may be regarded as a constructive trustee of an item of personal (albeit intangible) property, namely, copyright conferred by s 98 of the Copyright Act.

In this case, there was no evidence that the publication of the video footage or the photographs adversely impacted on either the goodwill or the standing of Windridge Farm or that Windridge lost anything of commercial or other value by reason of the video footage or photographs having been taken and given to Mr Pearson, apart from some expenses for which damages are the appropriate remedy. The Court ultimately concluded that the evidence did not establish that there was a basis for the copyright in the footage and photographs to be assigned to Windridge.

LEANNE O’DONNELL is a Melbourne lawyer, researcher, writer and volunteer.

(2011) 36(3) AltLJ 205
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