A credit stoush between documentary-makers over who should be named Principal Director has reached the Federal Court.
The Federal Court of Australia in Sydney was asked to decide an injunction application last week in relation to US drugs documentary Never Get Busted!, which was due to be screened at the Melbourne International Film Festival (MIFF) on Friday, 8 August, and Sunday, 10 August.
The matter had been listed for three-day hearing from 10 September, by which time the documentary would already have been screened, prompting an injunction application by Stephen McCallum to prevent screening or promotion of the film until the dispute with David Ngo was resolved.
In his decision published on Thursday, Justice Shariff ordered Mr Ngo and his company Projector Films be enjoined from causing or authorising the film to be shown publicly, or promoted, unless it contained the credit “Directed by Stephen McCallum” and did not contain the credit “Directed by” Mr Ngo.
The documentary was shown at MIFF at the weekend with amended credits.
Justice Shariff said the dispute may have members of the public asking the question: what is the difference between the Principal Director and a Director of a film?
He said the answer lay in Part IX of the Copyright Act 1968 (Cth) which deals with the “moral rights” of attribution in respect of films, specifically Section 191, which provides that: “a reference in this Part to the director … is a reference to the Principal Director of the film and does not include a reference to any subsidiary director, whether described as an associate director, line director, assistant director or in any other way”
“It can thus be seen that, where there is more than one person who is said to be the director of a film, the attribution of a person as the “Principal Director” has considerable significance to the moral rights of the relevant person,” he said.
He said that “whilst these are distinctions that may appear to be an exercise of overwrought pedantry and may well be lost on ordinary members of the public, they are ones which are well understood within the so-described “film industry”.”
Mr McCallum relied on s 189 of the Act to argue for his moral rights of “attribution of authorship”, and “not to have authorship falsely attributed”.
He said under his contract with Projector Films, he was engaged as the Principal Director but the company had failed to recognise him in that capacity in the documentary credits or promotions. This included at the Sundance Film Festival in the United States.
He claimed that by this and related conduct, Mr Ngo and his company infringed his “moral rights”, breached the contract, and engaged in misleading and deceptive conduct under the Competition and Consumer Act 2010 (Cth).
He argued he was suffering from irremediable harm to his moral rights, reputation and career prospects.
Mr Ngo argued that he was the Principal Director. He said it was intended that Mr McCallum be Principal Director but that after a period of time he abandoned his duties or ceased performing essential work, and was otherwise not involved in critical phases in the completion of the documentary.
“For the purpose of the somewhat boutique or bespoke issue as to who is the “Principal Director” of a “cinematograph film”, it is common ground between the parties that, where there is more than one director of a film, a reference in the credits to the film or in its promotional materials to the film being “directed by” a person is a reference to the “Principal Director” of the film and a reference to the “Director” is a reference to the non-Principal Director,” Justice Shariff said.
“It is also common ground between the parties that the order or sequence in which the directors are referred to in the opening or title credits and in the end credits also conveys who is the “Principal Director” where there is more than one director of a film.”
Justice Shariff said the parties did not want the matter to continue to be the subject of legal proceedings “because they considered it to be detrimental to their prospects of selling rights to the documentary to third parties which, in the present age of streaming and digital platforms, is where the real money is likely to lie rather than at the box office”.
He said he was satisfied the injunction should be granted “even though it will be obvious from this judgment that the question of who is the Principal Director of the documentary is the subject of legal proceedings and one might expect that the respondents will disclose this fact to third parties (if they did not already know)”.
Mr Ngo submitted that Mr McCallum consented to infringement of his moral rights when he signed a Director’s Agreement.
“The respondents further submit that, in any event, the preponderance of evidence establishes that Mr McCallum abandoned or ceased any relevant involvement with the film at a certain point in time and, from that time onwards, it was Mr Ngo who performed all of the relevant directorial work including managing the editing of the documentary, research, conducting further interviews, as well as managing and overseeing the sound recording, the animation and other vital steps involved in the finalisation of the documentary ready for screening,” Justice Shariff said.
Justice Shariff pointed to the terms of the Director’s Agreement that recorded the intention of Mr McCallum to be Principal Director, and to the fact that the agreement had not been terminated, nor breached or repudiated.
“Thus, subject to the resolution of the central factual controversy between the parties, I am satisfied that Mr McCallum has established that there is a serious question to be tried as to the existence and infringement of his alleged moral rights,” he said.
He did not accept the submission from the respondents that “none of this matters as the audience will not pick up the nuanced and subtle distinctions that are only known to experts…”,
“The relevant audience extends to the critical members of the film industry including the hosts of the MIFF, the judges who determine the awards to be given for best film or best director etc, the funders and financiers, network and streaming company executives, and so on,” he said.
“It is arguable that this segment of the audience is far more discerning and alive to the nuanced distinctions at issue here and these are the parts of the audience that, if misled, may be causative of the reputational or other loss that Mr McCallum claims.
“For these reasons, I am satisfied that Mr McCallum has established a prima facie case that there is a present threat and prospect of a contravention of the Copyright Act and the ACL. I am not prepared to characterise the case as strong, but it is not weak.”
The respondents submitted that if Mr McCallum’s request – for the director credits on the film to be changed to “the subject of a legal dispute” – was granted, this would deter potential buyers of the documentary or future investors.
Justice Shariff said the justice of the case warranted both men being credited as co-Principal Directors on the proviso that it be conveyed that the matter was the subject of legal proceedings.
He said however, the respondents’ submissions in this regard were “surprising”.
“I can readily accept that distribution companies, film houses, network and streaming service executives may be discouraged from investing in or acquiring the rights to screen the documentary when it is the subject of legal proceedings,” he said.
“I can also readily accept that prospect of sale or distribution through streaming services is where the real money lies in respect of the documentary.
“However, these proceedings are a matter of public record. It would be inconceivable that …(those) associated with the film would not disclose the fact of the legal dispute to any interested acquirers of the rights to republish, distribute or broadcast the documentary.
“Again, to the extent that there are consequences in respect of the commercial success of the documentary, it is a product of the parties’ inability to put aside their differences (be they creative, interpersonal, or based on fact or perception). On the evidence I have reviewed to date, no one party is more or less responsible than the other in this regard.”
Justice Shariff reserved the question of costs.
Share this article