Whitsunday Aerial Solutions Professionals Pty Ltd v Emprja Pty Ltd

[2021] FCCA 1548

Copyright – ownership in video footage of yacht race

This case concerned the ownership of copyright in eight “shots” of video footage (Footage) taken by means of a remote‑controlled camera mounted to an aerial drone by the applicant, Whitsunday Aerial Solutions Professionals Pty Ltd (WASP), on 12 and 13 January 2016, at the request of a third party, Project 64, and whether and if so what permissions or limitations were imposed on the respondent, Emprja Pty Ltd trading as “Abell Point Marina” (APM) regarding its use.  The parties admitted that the Footage was a cinematograph film within the meaning of the Copyright Act 1968 (Cth).

The Clipper Round the World Yacht Race is an international round the world yacht race event in eight legs held every two years.  The race, and the clipper yachts which compete in the race, attract international sponsorship and an international audience.  The race route for the 2016 Clipper Round the World Yacht Race (2016 Clipper Race) took the yachts to Airlie Beach in North Queensland.

APM leases and operates the Abell Point Marina at Airlie Beach, providing marina services, function spaces and other recreational services.  In mid-2015, APM successfully bid to have Airlie Beach and the Marina a host port for the 2016 Clipper Race.  It proposed to host a welcome party at the Marina for the 2016 Clipper Race during the participants’ stopover at Airlie Beach in January 2016. 

Project 64 was a helicopter business which wanted to promote its new business and agreed to sponsor the welcome party.  APM and Project 64 agreed that Project 64 would capture drone footage of the stopover at the marina.  Project 64 procured WASP to do so, and WASP shot the Footage.

WASP initially pleaded that it had entered into an oral agreement with Mr Burfitt on behalf of Project 64 on 12 January 2016 pursuant to which WASP owned copyright in the 2016 Clipper Footage, Project 64 was permitted to use the Footage for the promotion of its business, and APM was permitted to use the Footage for “the sole purpose of producing a video for the promotion of the 2016 Clipper Round the World Yacht Race”.  At the hearing, WASP contended that the permission was a limited licence to APM for promotion of the 2016 Clipper Race, but not limited to a single video.

In 2018, WASP became aware that Tourism Whitsunday, APM and the Whitsunday Regional Council had made videos available online which included the Footage.  It contacted APM and the other entities and raised the prospect of bringing copyright infringement proceedings.  From February to July 2018, APM took down various videos.  In April 2018, WASP and Project 64 entered into an agreement which was said to confirm the oral agreement from January 2016.  In October 2018, WASP and Project 64 entered into a deed of assignment which stated that to the extent Project 64 owns any copyright in the 2016 Clipper Footage it assigned it to WASP “with effect from the date of creation of” the Footage.

WASP pleaded that APM infringed its copyright, and authorised third parties’ infringing acts, and acted flagrantly in knowing and reckless disregard of the infringement.

In its defence, APM asserted that Project 64 commissioned WASP, that ownership of the copyright vested in Project 64 under s 98(3), that Project 64 granted a licence to APM to use the footage in promoting its business, and impliedly, to provide to third copies, that the Project 64 licence to APM authorised all uses, and that Project 64’s licence to APM was binding on WASP.  APM contended that, before the dispute in 2018, neither WASP nor Project 64 claimed any rights or limitations over the Footage. 

Having regard to the evidence of the witnesses, Judge Baird concluded that there was a single co-sponsorship agreement between Project 64 and APM which included the provision by Project 64 of an agreed dollar contribution for the costs of the welcome party, the provision of a HeliTaxi helicopter for the taking of video and photography of the 2016 Clipper Race stopover at the Marina, including arrival and departure of the Race fleet at a discounted price, and the provision of drone video footage of the welcome party, the race yachts berthed at the Marina, and the Marina.  The co-sponsorship agreement did not include any term limiting the use of the footage that was to be obtained or the type or amount of use.  Her Honour found that the footage that was to be obtained could be used by both APM and by Project 64 without restriction.

Judge Baird also found that, in a discussion on 12 January 2016, Project 64 engaged WASP to shoot footage by means of a drone mounted camera, and the parties reached agreement about price.  Her Honour was not satisfied that the parties said anything about copyright or permissions.  Judge Baird concluded that Project 64 commissioned the Footage from WASP within the meaning of s 98(3) of the Copyright Act, and the 2016 Footage was a commissioned film.  In the absence of agreement that WASP owned the copyright, s 98(3) operated and Project 64 owned it. 

Consistently with that conclusion, her Honour noted that WASP’s invoice for the Footage did not suggest that there was any discounted rate or that WASP retained ownership of the copyright, and the footage did not include any watermark or notice.  When WASP posted the Footage to YouTube, it did not assert ownership of the copyright.

Her Honour found that the “confirmatory deed” and the October 2018 Deed of Assignment did not change the situation.  Since the oral agreement in January 2016 did not vest copyright, the deed could not confirm copyright vesting.  The 2018 assignment was subject to the terms of the licence that Project 64 gave APM.  Since Project 64 did not impose any restriction on use, APM was entitled to use the footage as it did.

On the basis of these matters, her Honour found that APM had not infringed copyright or authorised others to infringe.  Her Honour also found that, even if the acts constituted copyright infringement, there would have been no basis for additional damages.  WASP’s claim was dismissed.

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