If you invade a property and take photos, who holds copyright in the photo?

Windrige Farm Pty Ltd is the owner of the Wonga Piggery, located near Young, New South Wales.  Along with the regular concerns faced by any piggery owner, including disease, environmental problems and the possibility of (former) prime ministerial ownership, there is always the risk of animal rights activists invading the property.  Such was the case on 9 July 2006, where Messrs Grassi, Simpson and James trespassed on the piggery to take photos and videos to document the conditions the animals were living in.

Windridge Farm brought proceedings for trespass, but more interestingly, they brought a claim seeking a declaration that copyright in all footage (photos and videos) taken during the trespass was owned by Windridge Farm, since the footage arose as a result of the trespass.  The argument made was that as copyright in the footage arose out of illegal activities, the Defendants held the copyright on constructive trust for Windridge Farm.

While giving it high marks for creativity, Justice Hall of the NSW Supreme Court rejected this argument on the following grounds:

• In order for a constructive trust to arise in respect of copyrighted material, it must be determined whether, on the facts of the case, it would be inequitable and against good conscience for the defendants to assert ownership against the plaintiff.  The court found that the circumstances, being that the defendants had not invaded residential premises and there was no intention to use the footage publicly, were not such that it would be inequitable for the copyright in the footage to remain with the makers.
• The plaintiff was not able to establish that, as a result of the defendants’ actions, that it had lost anything of value such that a constructive trust was an appropriate remedy.
• If there were damages arising out of the use of the film (as opposed to damages already awarded because of the trespass), such damages could be adequately compensated by a damages award, rather than by making the equitable order sought by the plaintiff.

 A link to the decision is available here.