The Full Court has broken new ground in The Game Meats Company of Australia Pty Ltd v Farm Transparency International Ltd [2025] FCAFC 104, imposing a constructive trust over copyright in footage obtained by trespass.
The facts have a familiar ring. Animal activists, Farm Transparency International Ltd (FTI), trespassed onto the premises of The Game Meats Company (GMC), an abattoir in Victoria. They installed hidden cameras and captured footage of operations. The footage was then sent to the Department of Agriculture, Fisheries and Forestry, shared with a local Channel Seven station, and published on FTI’s website.
The primary judge awarded damages for trespass but declined to grant an injunction to restrain further publication of the footage. The judge also refused to impose a constructive trust over the copyright in the video, leaving FTI as the legal owner of the footage.
Enter the Full Court
On appeal, all three judges agreed that FTI, having obtained the footage through trespass, held the copyright as a constructive trustee for GMC. The Court ordered FTI to assign the copyright in the footage to GMC, to permanently delete all copies in its possession, and to refrain from any further publication.
Notably, the Full Court imposed this constructive trust in the absence of any pre-existing relationship between the parties. Historically, constructive trusts over IP have only been imposed in circumstances of theft or fraud, or where there is a fiduciary relationship (eg, directors, employees or agents who create works for the benefit of a company but fail to execute a formal assignment). This decision is the first time an Australian court has declared a constructive trust over copyright created in circumstances involving an invasion of rights outside of these recognised categories.
A nod to Lenah Game Meats
This decision brings to life a suggestion made over 20 years ago in the High Court decision Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, which involved similar facts. In their joint judgment in that case, Justices Gummow and Hayne suggested in obiter that a constructive trust might arise where a video is made in circumstances involving the invasion of the legal or equitable rights of a plaintiff.
The Full Court has now confirmed that a constructive trust can be imposed in such circumstances.
Implications: Not just for trespass
While this case involved trespass, the Full Court’s reasoning could be applied in other situations where works are created through the invasion of another’s rights, including through a breach of confidence or the new statutory tort of serious invasion of privacy.
The message is clear: creators of works in such circumstances may find themselves holding copyright not for their own benefit, but as trustees for those whose rights they have infringed. Where copyright works are obtained through trespass or other wrongful means, it may now be possible to claim not only damages and an injunction, but also the copyright in the work itself, providing a potential means to shut down further dissemination by the creator and third parties.
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