McCallum v Projector Films Pty Ltd [2026]FCA 173

Ben Fuller | Vanessa McBride | Elizabeth Harris

Key takeouts

Blanket moral rights waivers are unenforceable. Part IX of the Copyright Act 1968 (Cth) is inconsistent with a general waiver of moral rights. Any blanket waiver is contrary to the public policy reflected in that scheme and is unenforceable.

Consent must be specific. Written consent by moral rights holders to acts that would otherwise infringe their moral rights should be specific, informed and directed to identified acts or omissions in relation to an identifiable work or category of works. Consent framed at a high level of abstraction risks being unenforceable.

• Boilerplate IP waiver provisions in construction contracts carry risk. Construction contracts may require a contractor to obtain a waiver on terms reasonably required by the principal, to the extent permitted by law, of any and all moral rights to which an author may be entitled anywhere in the world in relation to the relevant work.’
• The ‘extent permitted by law’ is now materially constrained. Agreements should specify the particular acts requiring consent and the terms on which that consent must be obtained. Principals should be equally specific when stating their ‘reasonable’ requirements for the waivers to be obtained.
• International forms of contract must be tailored. Forms such as JCT, NEC or FIDIC may assume a jurisdiction in which blanket waivers are permissible. Where these forms are used for Australian projects, the moral rights provisions must be reviewed for compliance with Part IX of the Copyright Act.
• Parties should audit indemnities in contracts already on foot. Where moral rights indemnities are premised on the indemnifier having obtained blanket waivers, the principal’s practical protection may be significantly less than assumed. Indemnity obligations may be triggered by circumstances the indemnifier has no ability to prevent, given that the underlying waivers may now be unenforceable. Retrospective specific consents should be sought where necessary, particularly for works with a strong creative element. Parties should review any associated indemnities in respect of third-party moral rights to ensure they are not premised on the indemnifier having obtained waivers that are unenforceable under Part IX of the Copyright Act. 

Facts

The dispute centred on who was the ‘principal director’ of a documentary film entitled Never Get Busted! (documentary). The documentary follows a former Texan narcotics officer turned drug reform campaigner. It took over 5 years to complete and screened at the Melbourne International Film Festival.

Mr McCallum was engaged under successive agreements as director of the documentary. His Director’s Agreement entitled him to the credit ‘Directed by Stephen McCallum’, provided he fulfilled his obligations. No screened version of the documentary carried that credit.

Mr Ngo was producer and principal writer of the documentary, and co-shareholder of Projector Films, being the film company that produced the documentary. He originally claimed to be the sole principal director. By the hearing, the respondents accepted that both Mr Ngo and Mr McCallum were principal directors but maintained that Mr Ngo deserved an enhanced credit. Both Projector Films and Mr Ngo were respondents to these proceedings.

Projector Films relied on clause 6.2 of the Director’s Agreement. The first sentence provided:

‘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’ (General Waiver).

The second sentence provided that, to the extent the General Waiver was unenforceable, Mr McCallum ‘unconditionally and irrevocably consents, for the benefit of the Producer and all of its assignees, licensees and sublicensees to material alterations to the Documentary […] for any purpose.’

Projector Films argued that clause 6.2 either operated as a general waiver or amounted to a general consent to all acts of infringement. On either basis, it said, Mr McCallum could not enforce his moral rights.

Decision

Shariff J found for Mr McCallum at first instance in the Federal Court. His Honour noted that the issues that fell for determination involved novel legal issues that had not previously been determined under Australian law. The decision does not change the existing law; rather, it is the first to interpret the existing legislative scheme in these circumstances. The General Waiver in the Director’s Agreement was unenforceable to the extent that it purported to operate as a general waiver of moral rights, as such waivers are not supported by the context, text and purpose of Part IX of the Copyright Act 1968 (Cth) (Act). Nor did clause 6.2 give rise to a general consent to the infringements Mr McCallum had claimed.

Shariff J found for Mr McCallum at first instance in the Federal Court. His Honour noted that the issues that fell for determination involved novel legal issues that had not previously been determined under Australian law. The decision does not change the existing law; rather, it is the first to interpret the existing legislative scheme in these circumstances. The General Waiver in the Director’s Agreement was unenforceable to the extent that it purported to operate as a general waiver of moral rights, as such waivers are not supported by the context, text and purpose of Part IX of the Copyright Act 1968 (Cth) (Act). Nor did clause 6.2 give rise to a general consent to the infringements Mr McCallum had claimed.

This decision applies to a liability hearing that confirmed the position identified in late 2025 for the purpose of providing interlocutory injunctive relief.  Questions of relief, remedy and other orders are yet to be decided at the time of this article.

Moral rights cannot be waived in general terms

Three moral rights are provided to authors under Part IX of the Act:

• right to attribution of authorship;
• right not to have authorship falsely attributed; and
• integrity of authorship (the right to protect the work from being altered, distorted or subjected to ‘derogatory treatment’ that harms the creator’s reputation).

Moral rights are personal to the author and distinct from the economic right of copyright. Unlike copyright, they vest only in individuals and cannot be assigned.

The Court held that Part IX’s scheme is inconsistent with a general waiver of moral rights and that such a waiver would be contrary to the public policy the scheme reflects. In reaching that conclusion, the Court gave weight to the fact that Parliament had deliberately removed a general waiver mechanism from the legislation. Parliament instead enacted a consent regime under which an author may give written consent to any or all acts or omissions that would otherwise infringe, ranging from a specific consent to a comprehensive consent.

The Court concluded that moral rights under the Act cannot be waived in general terms. It followed that the first sentence of clause 6.2 was invalid to the extent it purported to effect a general waiver.

General consent arguments also failed

Projector Films argued in the alternative that clause 6.2 should be read as a general consent to all acts of infringement, rather than as a waiver of the underlying rights. The Court rejected this argument.

Clause 6.2 did not state that Mr McCallum consented to all infringing acts or omissions. The first sentence was a blanket waiver by which the parties agreed Mr McCallum would renounce all his rights. The second sentence made plain that, to the extent the General Waiver was unenforceable, Mr McCallum consented only to a limited range of acts and omissions.

Projector Films also asked the Court to rewrite clause 6.2 by substituting ‘consent’ for ‘waives’. The Court rejected this. Rectification by construction requires the literal meaning to produce an absurdity and the objective intention to be self-evident. Neither condition was met.

Drafting considerations post-McCallum

Construct ‘hybrid’ clauses carefully

The decision makes clear that the statutory scheme under Part IX favours specific, informed consents over blanket waivers. Where a contract contains a hybrid clause (combining waiver and consent language) the waiver limb risks unenforceability in Australia, and the consent limb will only be upheld if it is directed to identified acts or omissions in relation to identifiable works. By way of illustration, a clause in the following terms would require amendment:

‘The Consultant must, prior to commencement of the Services: (i) provide to the Principal, where the Consultant is a natural person; and (ii) procure from all Personnel of the Consultant and provide to the Principal, consents and waivers, to the fullest extent possible under the Laws of any applicable jurisdiction, in relation to their Moral Rights, sufficient to allow the unimpeded use of the Deliverables by the Principal or any person authorised by the Principal and including when required by the Principal, giving consent to the Identified Acts in writing in the form required by the Principal.’

A clause of this kind is a hybrid: part waiver, part consent. Post-McCallum, the reference to ‘waivers’ would have no operative effect in Australia, and the broad language requiring consents ‘sufficient to allow the unimpeded use’ of the material risks being characterised as consent framed at a high level of abstraction. To be enforceable, the consent mechanism should enumerate the particular acts to which consent is given (for example, alteration, reproduction, cropping, or attribution in a specified manner) and tie those acts to identifiable works or categories of works. The reference to ‘Identified Acts’ may provide a sufficient foundation, but only if those acts are defined with the requisite precision elsewhere in the agreement. Drafters should remove the waiver limb, ensure that the consent mechanism satisfies the requirements of specificity articulated in McCallum, and (where the contract is being used for an Australian project) verify that the moral rights provisions comply with Part IX of the Act.

Australian Standard form contracts

By contrast with the hybrid clause considered above, Australian Standard (AS) form contracts tend to frame the obligation around obtaining consents rather than waivers. For example, AS 4902–2000 (General conditions of contract for design and construct) requires the Contractor to ‘do all things necessary to ensure that the Principal […] can use, reproduce, communicate and adapt the documents […] without being subject to a claim by any person for infringement of moral rights’ and to obtain ‘the written consent of each author’ to specified acts or omissions. While this consent-based formulation is better aligned with the statutory scheme, it still requires careful attention to ensure that the consents obtained are sufficiently specific and informed to satisfy Part IX of the Act.

International considerations

The right of waiver is explicitly recognised in some common law jurisdictions (such as the United Kingdom and New Zealand), while in civil law jurisdictions (most notably France, where moral rights are perpetual and inalienable under the Code de la propriété intellectuelle) moral rights cannot be waived or consented away at all. Australia’s position post-McCallum sits between these two poles: blanket waivers are unenforceable, but specific, informed consents remain available under Part IX. This spectrum reinforces the reasoning in McCallum: Parliament deliberately moved the Australian regime away from permitting general waivers, aligning it more closely with the civil law tradition of treating moral rights as inherent to authorship, even if it stopped short of full inalienability.

If it is anticipated that a work will be exploited abroad, or where an international form of contract (such as JCT, NEC or FIDIC) is being used for an Australian project, particular attention should be paid to the moral rights provisions presented as ‘standard’. Some of those forms do not refer to moral rights at all; others may assume a jurisdiction in which waivers are permissible. There are further complications to consider given that in other jurisdictions (such as in the UK, under section 78 of the Copyright, Designs and Patents Act 1988) moral rights must be asserted to be enforceable, and if they have not been asserted, there is essentially nothing to waive.