Don’t skip the credits: blanket moral rights waivers unenforceable after McCallum v Projector Films

A recent decision by the Australian Federal Court has, for the first time, directly considered whether a general contractual waiver of moral rights is legally effective under the Copyright Act 1968 (Cth) (Copyright Act). 

In McCallum v Projector Films Pty Ltd (Liability Hearing) [2026] FCA 173, Shariff J held that blanket waivers purporting to waive “all moral or other similar rights” worldwide and in perpetuity, are unenforceable, as they are inconsistent with the text, context and purpose of Part IX of the Copyright Act. The Court also held that such waivers are contrary to public policy, as moral rights are personal and inalienable, and therefore are incapable of being assigned, licensed or waived.

Importantly, the Court acknowledged the efficacy of specific consents to conduct which would otherwise infringe moral rights under section 195AW of the Copyright Act. Section 195AW(1) applies to a cinematograph film or literary, dramatic, musical or artistic work as included in a cinematograph film and provides that:

“It is not an infringement of a moral right of an author in respect of a work to do, or omit to do, something if the act or omission is within the scope of a written consent given by the author or a person representing the author.”

The decision also highlights the need for care in relation to handling credits as the Court also found that Projector Films engaged in misleading and deceptive conduct under section 18 of the Australian Consumer Law (ACL) by making false representations about the identity of the principal director of a documentary on IMDb, at film festivals and in other promotional materials. 

Background

The case concerned a dispute between two film directors over attribution as "principal director" of a documentary film titled, “Never Get Busted” which premiered at the Sundance Film Festival and Melbourne International Film Festival. The film, which took over five years to complete, examined the life of a former Texan-based narcotics officer in the 1990s. The Applicant had been engaged under a director's agreement to direct the documentary (Director’s Agreement), but the documentary’s producer (Projector Films Pty Ltd) and principal writer (Second Respondent) was credited with a "Written & Directed by" credit, while the Applicant was only credited as a “Director”. 

The Applicant had successfully obtained an urgent interlocutory injunction in 2025. This case considered the claim that his moral rights had been infringed (particularly the right of attribution and the right against false attribution). The Applicant also claimed that Projector Films and the Second Respondent had breached the Director’s Agreement and had engaged in misleading and deceptive conduct under the ACL. Projector Films cross claimed that the Applicant had breached the Director’s Agreement by failing to discharge his duties as director and by bringing adverse publicity to the documentary and Projector Films.

The decision is quite lengthy, spanning some 981 paragraphs. We focus on one aspect of the decision here, being how the Court dealt with the Applicant’s statutory moral rights and the ACL issues.

The issues before the Court were to determine the meaning of “director” and “principal director” under the Copyright Act, whether the Second Respondent held either status, whether the Applicant’s moral rights were validly waived and if Projector Films or the Second Respondent had infringed or were likely to infringe, the Applicant’s moral rights. We discuss these issues below.

Was the general moral rights waiver enforceable?

A key threshold question considered by the Court was whether the Applicant had either waived his moral rights or consented to the infringement of those rights under the Copyright Act. For context, the relevant clause of the Director’s Agreement stated:

The Director waives all moral or other similar rights in respect of the Documentary or the Development Materials that the Director may be entitled to under the laws of any jurisdiction throughout the world in perpetuity. To the extent that the foregoing waiver is not enforceable in any jurisdiction of the world the Director unconditionally and irrevocably consents, for the benefit of the Producer and all of its assignees, licensees and sublicensees to material alterations to the Documentary (including, without limitation, any copying, editing, adding to, taking from, adapting and / or translating the Documentary in any manner or context) for any purpose.^[1] [our emphasis]

The Respondents contended the waiver in the above terms was not prohibited by the Copyright Act and was not otherwise contrary to public policy. This argument relied on commentary from two cases: Price v Spoor [2021] 270 CLR 450 at [12] (Kiefel CJ and Edelmen J) and Commonwealth v Verwayen (1990) 170 CLR 394 at 404 (Mason CJ), which both accepted that a person upon whom a statute confers a right may waive or extinguish that right unless it would be contrary to the statute, or public policy, to do so. 

The Respondents submitted an alternative argument that the Applicant consented to the infringement of all his moral rights and/or that he had forgone a right to sue for infringement of such rights. They claimed that the term “waive” encompassed a general consent for the purpose of section 195AW of the Copyright Act, and that it would be preferable for the Court to give effect to this compared to not giving effect to the clause at all. 

The Court undertook a detailed examination of the history leading to the enactment of the Copyright Amendment (Moral Rights) Act 2000 (Cth) (the Moral Rights Amendment Act). Relevantly, moral rights were first recognised in the Berne Convention (Article 6) in 1979 and are also recognised as having the status of fundamental human rights (Article 27(2) of the Universal Declaration of Human Rights), the structure and construction of Part IX of the Copyright Act and the interpretation of the waiver in question itself. 

Shariff J ultimately held the general waiver extracted above to be unenforceable for three primary reasons:

• Nature of moral rights 
  The nature of moral rights differs greatly compared to copyright. Unlike copyright (an economic right of personal property), moral rights are personal and inalienable between the author and the relevant work. Shariff J held that moral rights are not akin to any other right and that by reason of their distinctive “essential nature” they are incapable of waiver, absent an express power in the Copyright Act to do so.^[2]
• Examination of extrinsic materials 
  The legislative history indicated a clear intention that it would be contrary to the Copyright Act to allow a general waiver of moral rights. Earlier versions of the Moral Rights Amendment Act contained express provisions permitting waivers alongside consent provisions, the waiver provisions were intentionally removed prior to its enactment in favour of narrower consent mechanisms, which are finely tuned to protect rights holders.^[3]
• General waiver inconsistent with the Copyright Act 
  Part IX of the Copyright Act sets out a delicately calibrated regime with specific requirements for moral rights holders to provide written consent to third parties allowing them to infringe certain rights. It was held that a general waiver could not be reconciled with the structure of this scheme, as doing so would render sections 195AW, 195AWA and 195AXJ of the Copyright Act redundant and ultimately be contrary to the public policy aims reflected in its structure.^[4]

In respect of the Respondents’ alternative submission, Shariff J rejected the argument pointing to conflicting internal textual markers within the clause. His Honour held that the first sentence could be construed as a blanket waiver by which the parties agreed the Applicant would renounce his moral rights altogether. By contrast, the second sentence, to the extent the waiver is unenforceable, established that the Applicant separately provided consent to a limited range of acts and omissions.^[5]

Other findings

In determining what “director” and “principal director” mean in the context of Part IX of the Copyright Act, the Court adopted a purposive approach rather than the literal dictionary definition. His Honour observed that while these terms are not defined, there is no requirement for a director to have ultimate creative control over all aspects. The Court’s approach emphasised that job titles and contracts are not decisive and the actual work done is the key to determining these roles.

Additionally, the Court found that Projector Films had infringed the Applicant’s moral right of attribution and his right against false attribution by crediting the Second Respondent as the sole principal director. The Court closely examined evidence relating to the roles, duties and work actually performed by the Applicant and the Second Respondent including a review of contemporaneous production documents and iterative edits of the Documentary. Ultimately, it was held that the Applicant was the sole principal director of the Documentary (by reference to section 191 of the Copyright Act) as he was the chief person exercising creative control over the production, editing, key interviews and essential storytelling content underlying the Documentary.

Projector Films was also held to have breached multiple provisions of the Director’s Agreement, including failing to provide the Applicant with the contractually agreed credit, failing to pay invoices and failing to provide the Applicant with edits of the documentary for approval.

In addition, Projector Films was held to have engaged in misleading and deceptive conduct under section 18 of the ACL by making false representations about directorial credit on IMDb, at the Sundance Film Festival and on the Melbourne International Film Festival website. Shariff J rejected the argument that the IMDb website was merely “informational” rather than promotional, finding its use was “quintessentially” a commercial and trading activity.^[6] The cross-claim brought by Projector Films against the Applicant was also largely dismissed.

Key takeaways

• Use clear consents not waivers 
  Clearly spell out what conduct the moral rights owner is consenting to, i.e. the specific works (past, present or future works), contexts (what qualifies as ‘derogatory’) and acts (e.g. distortion, adaptation, lack of attribution). This requires practical considerations of what a contracting party requires from the moral rights holder to fulfil its obligations under the contract. For the moral rights holder, this requires careful consideration of what exactly they are consenting to, including whether they have all necessary information, whether the consents are specific and whether the consent is in their best interest.
• Blanket or overly broad moral rights waivers are likely to be unenforceable 
  Contractual clauses purporting to waive "all moral or other similar rights" in Australia for perpetuity are likely to be unenforceable. The only mechanism to manage infringement of moral rights is by consent (as set out in sections 195AW, 195AWA and 195AXJ of the Copyright Act).
• Clearly document the role each person plays in a production 
  Film production is rarely a solo act and the roles played by various people involved is not always clear. It is a good idea to document each person’s contribution. Where their role has evolved from what was contemplated when a contract was signed, it is a good idea to vary the contract to capture any changes.
• Take care with credits and attribution 
  Correct attribution is important both as a matter of moral rights and to avoid ACL exposure, and different credit formulations can carry significant legal weight. Moreover, representations as to credit in promotional contexts, including industry databases and promotions for events (including online material), can give rise to ACL liability. 

If you have any questions about the implications of the Court’s decision and the moral rights consents relevant to your business, please contact us.