McCallum v Projector Films: moral rights, principal director, and why credits counted

The Federal Court has delivered a detailed liability judgment in McCallum v Projector Films Pty Ltd (Liability Hearing) [2026] FCA 173 (McCallum) (Shariff J), holding that Stephen McCallum is the sole principal director of the documentary ‘Never Get Busted!’, finding moral rights infringements by Projector Films and Mr Ngo, and addressing contractual and Australian Consumer Law (ACL) issues tied to how the film was credited and promoted.[1]

Substantive moral rights decisions are rare in Australia. McCallum is notable not only for being the first to construe ‘principal director’ under Part IX of the Copyright Act 1968 (Cth), but for the way the moral rights findings, the ACL claims, and the contractual disputes all turned on the same underlying question — what does the attribution, read in context, actually communicate? That convergence makes it a useful decision across several areas of practice.

Background

Mr McCallum was engaged to direct the documentary under successive agreements, culminating in a ‘Director’s Agreement‘ entitling him — provided he fulfilled his obligations — to the screen credit:

‘Directed by Stephen McCallum’

No screened version used that credit.

The respondents first contended that Mr Ngo alone was the principal director — although, they later pleaded that both Mr Ngo and Mr McCallum were principal directors. The Court ultimately found that Mr McCallum is the sole principal director, and that Mr Ngo is a director but not a principal director for the purposes of Part IX.

Moral rights: who is the ‘principal director’?

The Court applied ordinary principles of statutory construction to the undefined terms ‘director’ and ‘principal director’ in Part IX, informed by industry evidence as context, but focused on function and the actual work done.

In summary:

• a ‘director’ is the person who has management, control, supervision or responsibility over the creative process of translating an idea or script into film;
• a ‘principal director’ is the chief or main person among those performing those functions. Contract labels are not determinative.

The Court accepted that Mr Ngo performed director’s work, particularly in the editing/post‑production phases, but not as the chief or main person across the creative process when assessed holistically and in context. When considering whether Mr Ngo was the chief person responsible for the creative process, the Court treated the contemporaneous documents recording how the documentary and its edits developed and the iterative cuts of the documentary itself as more persuasive evidence than broad assertions that Mr Ngo had “creative control”.

Before McCallum, the term ‘principal director’ in Part IX had never been the subject of such detailed judicial consideration. The term is used in collective agreements, guild contracts, screen financing documents, and co-production treaties — but without a settled Copyright Act definition. The Court found that principal directorship, in this context, is a functional question, determined holistically and on the evidence, not by a contractual label. The Court held that determining who is a principal director is a functional and fact-dependent inquiry that hinges on the role, duties and work actually performed or discharged by the relevant person, viewed in light of the production as a whole. While contractual arrangements may inform that analysis, they are not determinative. It will be interesting to observe whether the findings affect drafting and negotiation of director agreements in the future.

Can moral rights be ‘waived’?

On waiver and consent, the respondents advanced two separate arguments. Their primary argument was that the first sentence of clause 6.2 of the Director’s Agreement operated as a general waiver by which Mr McCallum renounced all moral rights in the documentary. The Court accepted that this was the proper construction of the first sentence, holding that it was a blanket waiver of the underlying rights themselves rather than merely a waiver of a particular infringement or of a right to sue. The Court ultimately rejected this primary argument, concluding that a general waiver of moral rights is inconsistent with the text, scheme and purpose of Part IX of the Act and is therefore invalid to that extent.

The respondents’ alternative argument was narrower. Even if the first sentence could not operate as a waiver, they said it should still be treated as a general consent under section 195AW to any acts or omissions that would otherwise infringe Mr McCallum’s moral rights. The Court also rejected that argument, holding that the text of the first sentence did not operate in terms of consent to infringing acts or omissions, but instead in terms of relinquishing rights altogether. The structure of clause 6.2 reinforced that conclusion, because the second sentence separately gave a limited consent to material alterations’ to the documentary, making clear that the clause itself distinguished between a purported ‘waiver’ in the first sentence and a confined ‘consent’ in the second.

Infringement findings and why ‘Directed by’ vs ‘Director’ mattered

Within this framework, the Court found that Projector Films infringed Mr McCallum’s right of attribution by failing to attribute him as principal director (including by not giving him the ‘Directed by Stephen McCallum’ credit), and infringed his right against false attribution by conveying that Mr Ngo was the sole principal director in the opening and end credits of the Sundance and feature versions. Mr Ngo also infringed those moral rights (by authorising the credits that implied he was the principal director).

The form and placement of credits mattered. Although Part IX does not prescribe the form of credits, the use of ‘Directed by’ for Mr Ngo and ‘Director’ for Mr McCallum — together with their position in the credit roll — conveyed that Mr Ngo was the main person exercising creative control, and that Mr McCallum was not the sole principal director – that is, it is to be determined as a whole and in context.

The reasoning has implications beyond the film industry. The Court was not applying a rule specific to screen credits — it was applying a general principle: that the form, grammar, and placement of an attribution, read in context, can convey a legally significant meaning about authorship or creative primacy. The same logic could apply to album liner notes, book cover attributions, software ‘about’ pages, or any other medium where the manner of crediting one contributor relative to another carries weight. Attribution disputes in those contexts have traditionally been litigated, if at all, in contract. McCallum is a reminder that moral rights — and the ACL — may also have something to say about how that message is framed.

Misleading directorship credits: ACL findings

Projector Films was also found to have engaged in misleading or deceptive conduct under s 18 of the ACL. Mr McCallum challenged a series of statements Projector Films made — across IMDb, festival websites, screened credits, promotional materials, and communications with Screen Australia — about who had directed the film. The Court assessed each statement in turn: of the ten examined, five were misleading, one would have been misleading but was never published due to the Court’s earlier interlocutory orders, and four were not established.

The ACL analysis is worth reading alongside the moral rights findings because it shows the same underlying point in a different legal setting: credits and promotional material can communicate a legally significant message about authorship or principal directorship, and context will determine what that message is.

Contract: express obligations and breaches

The Court upheld four related breaches of the Director’s Agreement:

Practical implications

The decision has at least three immediate implications.

First, for cinematograph films, principal directorship under Part IX turns on function and the totality of the evidence, not simply on contract labels or legal submissions.

Second, in the moral rights context, attribution questions may depend on the overall presentation of credits, not just on whether a person’s name appears somewhere in the film.

Third, contracts dealing with moral rights should be drafted by reference to the statutory consent mechanism actually enacted in Part IX of the Copyright Act. The practical consequence for agreements is more significant than it might first appear. A clause purporting to operate as a blanket moral rights waiver — of the kind that has appeared in many precedents or international agreements — may be unenforceable to that extent.

The question that follows is what a valid s 195AW consent actually needs to say. The provision permits written consent to ‘all or any acts or omissions’ in relation to a cinematograph film, which is broad — but the consent must be genuinely directed to specific acts or categories of conduct, not simply drafted as a general surrender of rights. The Court’s construction of clause 6.2 signals that courts will read these clauses carefully, and that the gap between a valid consent and an impermissible general waiver is narrower than many precedent agreements assume.

Nonetheless, there are limits to how far the case should be taken. The waiver/consent issue arose on the construction of a particular clause in a cinematograph film dispute, and the Court was not purporting to exhaust every possible moral rights scenario. Any broader implications for non-film works should be expressed with care and by reference to the different consent settings in the Copyright Act.

One further question remains open: what remedies will flow from these findings. The Court reserved all questions of relief, remedy, and costs for a separate hearing. Moral rights remedies under Part IX are a relatively undeveloped area of Australian law. The available orders include injunctions, delivery up, and a declaration, as well as damages, but the principles governing quantum in attribution disputes have had little judicial treatment. The remedies hearing in McCallum may prove to be as significant as the liability judgment, and practitioners should watch it closely.

[1] The respondents’ cross-claim was largely unsuccessful. The Court rejected the allegations that Mr McCallum had failed to discharge his duties as director and rejected the misleading conduct cross-claim, but upheld one part of the non-disparagement case by finding that notoriety had been brought to Projector Films in one respect.

Features image by Roman Kogomachenko from Pixabay.