No constructive trust over copyright in photos and film created by trespassers
Windridge Farm Pty Ltd v Grassi & Ors  NSWSC 196
In a decision handed down on 29 March 2011, the NSW Supreme Court held that a constructive trust did not arise in respect of photos and video footage taken by animal rights activists trespassing on a property. Justice Hall held that the case did not fall within circumstances contemplated by the High Court in Lenah Game Meats (2001) 208 CLR 199 because it would not be inequitable and against good conscience for the trespassers to assert ownership in the material.
Facts: trespass by animal rights activists
The decision concerned an application by the operator of a pig farm against three defendants who had (admittedly) trespassed onto the farm at night and taken photos and video footage at the piggery. The photos and film were provided to an animal rights organisation for the purposes of initiating an investigation by a vet and, if necessary, the police, into the conditions at the piggery. After receiving the photos and film, the RSPCA and the police undertook investigations but no further action was taken.
In addition to a declaration of trespass (which the Court declined to make given the defendants’ admissions) the plaintiff sought a declaration that the copyright in the photos and film was held on constructive trust by the defendants for the plaintiff and an order that such copyright be assigned to the plaintiff. The plaintiff also sought orders that the defendant be restrained from making any further use of the photos or film, as well as orders for damages including aggravated and exemplary damages.
Claim for injunctive relief refused
His Honour referred to the decisions of Gleeson J in Lenah Game Meats and Young J in Lincoln Hunt (1986) 4 NSWLR 457 as supporting the proposition that an injunction could be ordered if the conduct of the defendants involved a breach of confidence or unconscionable conduct. However if the information lacked the necessary quality of confidence, the fact that the information was obtained through trespass was not sufficient of itself to make the use and publication of the information unconscionable.
In this case, Hall J held that there was no breach of confidence and no unconscionable conduct on the part of the defendants. It was significant that the material had been provided to the animal rights organisation solely for an investigation and not for general publication. There was no evidence that the use of the material had affected the goodwill of the plaintiff in any way. His Honour refused to order an injunction.
No constructive trust found
Justice Hall referred to observations by Gummow and Hayne JJ in Lenah Game Meats (at CLR 246) that where a film is made in circumstances involving the invasion of a property owner’s legal or equitable rights, it may be inequitable and against good conscience for the maker to assert ownership of the copyright against the property owner. The maker may then be regarded as the constructive trustee of the copyright for the property owner.
However, Hall J held that the evidence did not establish such circumstances in this case. It was relevant that the premises were not residential premises and there was no evidence that the defendants intended to more widely use or publish the material, or profit from its use or publication. His Honour therefore refused to declare that the defendants held the copyright on constructive trust and to assign the copyright to the plaintiff.
Damages awarded despite no proven loss
On the question of damages, there was no proof of actual loss to the plaintiff caused by the trespass. However his Honour noted that the plaintiff was nonetheless entitled to damages to vindicate its right to exclusive possession of its property. His Honour ordered that the defendants pay $15,000 in general damages, but refused to make an order for aggravated damages (to further compensate the plaintiff) or exemplary damages (to punish the defendants). This was because the evidence did not establish that the plaintiff suffered any pecuniary harm or loss to reputation or goodwill and his Honour was satisfied that the defendants had not shown a complete disregard or indifference to the plaintiff or its operations. His Honour was prepared to order special damages to compensate the plaintiff for the cost of engaging a vet to attend at the time of the investigations by the RSPCA and the police as this was a cost related to the trespass.