Wills v Australian Broadcasting Corporation

1. Between the years 1997 to 2001 - (herein referred to as 'the live production period') I directed and filmed cinematographic material - (herein referred to as 'videos'). 2. All of the videos were filmed by me operating as a qualified senior director of photography producing broadcast quality footage defining it as original artistic work owing to my input to production values as a skilled craftsman. In these videos I used multiple roles as a camera operator and various character performing in front of the camera. I took up central narrative aspects within the program's subject matter to use these as dramatic devices directly personifying various points of view within the show's choreographed and animated segments. My presentation included portraying and characterizing improvised scenarios constantly moving between a diverse variety of events and 'behind the scenes' settings within a 'day in the life' context producing a docu-dramatic saga. This involved interacting with artists and their subject matter in certain environments witnessing construction of a large range of artistic projects. 3. These videos contained sound tracks consisting of my edited sound recording compilations mixing ambient soundscapes with sampled musical works including fictional narrative commentarys (sic) and dramatized conversations with and between many characters (sic). 4. Both before and during the live production period I mentioned my intentions to each performer of editing my videos to produce a series of showreels, music clips, dramas and documentarys (sic) which would ultimately promote a website launching my interactive computer program format invented to attract the membership of artists whilst promoting their works. The performers reacted to this proposition positively assigning me permission to film them. 5. They did not pay me as a director of photography and have not offered to since then. During the live production period I left the videos with the performers for continuity assuming that filming would beyond this period continue. Without my consent the performers and their post-production associates prematurely began duplicating and editing my original videos in a rushed manner to facilitate completion of their own media projects. In the live production period I had instructed the performers to only copy my videos to VHS tape so that we could discuss general approaches to post-production. At this point against my permission the performers and their associates surreptitiously shut me out of post-production proceeding to duplicate my videos onto various computer hard drives at different locations which were distributed and broadcast without my consultation, knowledge or consent which minimized post-production time and costs. Proceeding their post-production period I approached the performers for the location of my original and edited videos, each of them responded vaguely that they were 'lost' and that they would search for them. Cindy Morris from 1998 took my videos of R. Smiths band 'Crawlspace' to Ross Stewart's edit suite where she and her other associates edited them producing a music clip titled 'Afraid'. R. Smith in 2000 had also taken my videos of his band to R. Stewart's and other edit suites where his associates duplicated and edited them under his supervision to produce various media promotions. S. Deschamp took my videos of his band T-Cells to R. Stewart's edit suite where he supervised duplication and editing producing a music clip titled 'Implant'. R. Charles in 2000 took my videos of his band 'Sea Horse Radio' to his associates various edit suites supervising their editing and duplication to produce three music clips titled 'Lost and Distorted', 'Slide' and 'Burning in Water' - (the five music clips are herein referred to as 'the clips'). R. Stewart then duplicated and distributed the clips to various TV shows including 'Clip-Art' and 'Rage'. These and other shows repetitively broadcast them. 6. Contradicting C. Morris' earlier claims that my videos were 'lost', in September 2006 I visited her and saw a Betacam video in her house displaying the ABC (Australian Broadcasting Corporation) logo with the text: 'Crawlspace, Afraid'. A few days later I approached her to purchase the Betacam she replied that it was 'gone' and irretrievable. My sighting of this video was my first tangible proof that my video had been edited, duplicated and distributed to the ABC. 7. I submitted the musician's and band's names and music clips broadcast dates on Rage being: 'Afraid' was first broadcast from the 21/8/1998 including the 28/8/1998 and the 4/9/1998; 'Implant' was first broadcast from the 11/8/2000; 'Slide' was first broadcast from the 9/2/2001; 'Lost and Distorted' was first broadcast from the 23/2/2001. 8. My first proof that the clips were broadcast on 'Rage' occurred when I obtained a printout of the Rage archive playlist that featured the names of the slips on the 29/5/2008. From studying these printed playlists I realised that my clips had been subjected by Rage's schedule/playlist producers to a pattern of discrimination because they were distributed for broadcast in association with R. Stewart's independent record label. Like all independent labels within the playlists the clips were consistently marginalized by constant relegation to obscure air-time broadcast time slots within the 'Rage' program's playlist schedule being the zero rating early hours of Saturday mornings. Of the 539 music clips featured on the playlists in proximity to the dates that the clips infringing my performance and copyrights were broadcast: a total of 61 were titled as independent releases; 59 of those were broadcast between the time slots of 1.30 am to 5.30 am; 40 of these clips were broadcast between 3.30 am to 4.30 am in stark contrast to only 4 independent clips being broadcast within Rage's highest rating prime time first opening hour of the program being 11.30 pm - 12.30 am.

Limitation of action 10 By notice of motion dated 13 May 2009, the respondent sought orders that the applicant's claim, insofar as it relates to alleged broadcasts of the music videos Afraid, Implant and Slide, be struck out as being statute-barred. However, that motion has now been subsumed within this action, in effect, as one limb of the respondent's defence. 11 Section 134(1) of the Copyright Act 1968 (Cth) (the Act) relevantly provides that an action for infringement of copyright shall not be brought after the expiration of six years from the time when the infringement took place. 12 It is common ground between the parties that the music videos Afraid, Implant and Slide were broadcast by the respondent on dates earlier than 19 December 2000, being the date six years before this application was commenced. 13 It follows that the applicant's action for infringement of copyright so far as it concerns those broadcasts is statute-barred. This leaves only the music videos Burning in Water and Lost and Distorted in issue. I propose, however, to deal with the applicant's claims in respect of all the music videos in order to consider the credibility and reliability of the applicant's claims against the totality of the evidence without detracting from the fatal consequence which attaches to the music videos Afraid, Implant and Slide because of the statutory time bar.

Work or other subject matter in which copyright subsists 14 "Subject matter other than works" in which copyright may subsist is governed by Part IV of the Act and includes "cinematographic film". 15 "Cinematograph film" means the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing: (a) of being shown as a moving picture; or (b) of being embodied in another article or thing by the use of which it can be so shown and includes the aggregate of the sounds embodied in a sound-track associated with such visual images. 16 It is common ground that the music videos, the subject of this application are, at least, cinematograph films and, as such, are governed by Part IV of the Act. 17 Indeed the Full Court in its decision to which I have referred by variation orders, ordered that judgment be given for the respondent against the applicant: … in relation to all parts of the proceeding against it, except that part in which the applicant claims damages, or an account of profits, for infringement of any copyright of the applicant in respect of cinematographic material filmed by the applicant between 1997 and 2001, by reason of the broadcast by [the respondent] of film clips incorporating part of any such cinematographic material. (Emphasis added) Accordingly, the applicant's case before me was confined in that way by the Full Court. 18 Although the applicant does not assert that he is the author of the musical works or the literary works such as the song lyrics contained in the music videos, he implied in his application and upon inquiry by the Court during the course of the trial, that each music video constituted an "artistic work" as well as a cinematographic film. He submits that the term "craftsmanship" extends to the making of images. This is disputed by the respondent. 19 Under Part III of the Act copyright may subsist in a "work". By s 10 of the Act a "work" includes an "artistic work". 20 "Artistic work" is defined in s 10 of the Act as: (a) a painting, sculpture, drawing, engraving or photograph; (b) a building or model of a building; or (c) a work of artistic craftsmanship. 21 The definition of "photograph" in s 10 excludes an article or thing in which visual images forming part of a cinematographic film have been embodied. 22 For an article to be a "work of artistic craftsmanship" under para (c) of the definition of "artistic work", the article must have artistic character and there must be "craftsmanship" involved in the making of the article: Merlet v Mothercare plc (1984) 2 IPR 456. "Craftsmanship" suggests a durable useful handmade object: George Hensher Ltd v Restawile Upholstery (Lancs) Ltd [1976] AC 64 at 77 per Lord Reid. The respondent has identified no authority for the proposition that a cinematograph film can be a "work of artistic craftsmanship". The fact that the Act deals specifically with cinematograph films as a subject matter other than works is, in the respondent's submission, which I accept, demonstrative of the intention that such a film cannot be an artistic work for the purposes of the Act. 23 Accordingly, there is no basis upon which a cinematographic film can be characterised within the meaning of the Act as a "work" whether an "artistic work" or otherwise. 24 The respondent submits that even if, which is denied, the applicant is the owner of any artistic works within the meaning of the Act, the applicant is precluded by the order of the Full Court from claiming for any infringement of the copyright in such works. 25 It is not necessary to decide that question because I am satisfied that, as a matter of law, the music videos do not constitute "artistic works" within the meaning of the Act.

Ownership of copyright in cinematograph films 26 The principal issue in these proceedings is the ownership of the copyright in the music videos. I regard the applicant's statement as including, if somewhat awkwardly, a claim to ownership of the copyright in the cinematograph films which are the music videos. 27 Copyright subsists in a cinematograph film made in Australia or made by a qualified person being an Australian citizen or resident of Australia: ss 89 and 90 of the Act. Any copyright subsisting in a cinematograph film is owned by the maker of the cinematograph film (except where the maker has been commissioned to make the film): s 98(2) of the Act. Any reference to the making of the cinematograph film means the doing of the things necessary for the production of the first copy of the film: s 22(4)(a) of the Act. The maker of a cinematograph film is the person by whom the arrangements necessary for the making of the film were undertaken: s 22(4)(b) of the Act. 28 The Act appears to allow for the possibility of there being multiple "makers" of a cinematograph film for the purposes of the Act: see for example the reference in s 98(4) of the Act to "each director" of a non-commissioned film. The applicant did not suggest that this provision had any application to his case. 29 The owner of copyright in a cinematograph film is "generally the producer who makes the financial or administrative arrangements for the production of the first copy of the film": Lahore's Copyright and Designs at [20,145]; Seven Network (Operations) Ltd v TCN Channel Nine Pty Ltd (2005) 66 IPR 101 at [12]-[19] per Lindgren J, at [89] per Finkelstein J. The authors there also contrast the protection for "works" and "subject matter other than works" provided by the Act, stating that: The protection given by copyright law to the recording, film, broadcast or edition is, with one exception, not to the original work of an author, but rather to the investment of the manufacturer or producer. The exception relates to the very limited copyright given to film directors ... to receive payment from pay TV operators exercising their statutory right to re-transmit free-to-air broadcasts. 30 In the same vein Ricketson's Law of Intellectual Property: Copyright, Design and Confidential Informationstates that the "maker" is the producer of the film, not the camera operator nor the director. The Copyright Amendment (Film Directors' Rights) Act 2005 (Cth) which extends, subject to certain exceptions, the meaning of "maker" of a film to include a reference to each director of the film, obviously has no application to this case. 31 When I refer in these reasons to "producer" or a derivative I use it in the sense described in the above texts. 32 Set against those tests, the respondent submits that the applicant has failed to establish that he was the "maker" of any of the cinematograph films embodied in the music videos, either in his own right or jointly with any other person.

Ownership of copyright in Seahorse Radio music videos: Slide, Lost and Distorted, Burning in Water 33 In relation to the music videos for the songs Slide, Lost and Distorted and Burning in Water, one of the members of the band "Seahorse Radio", Mr Ronan Charles, who presently owns and runs a multi-media design business known as "Electric Badge", gave evidence that: 1. one or more of the members of the band, namely himself, Keren Letheby and Nathan Winterflood, wrote and recorded the songs. They were part of an extended play (EP) recording called 'Shortcut' which was released in 2000; 2. he arranged for himself and the other members of the band to travel to various locations to film video footage over a weekend in June 2000 that were to be used to produce music videos clips for songs on the Shortcut EP; 3. the weekend prior to the shoot, he produced a storyboard for the music videos based onhis own ideas containing a number of sketches and notes of particular shots he wanted to take, at locations which he knew and which meant something to him and to the band; 4. the only other person to come on the Shortcut Trip, in addition to the band members of Seahorse Radio, was the applicant. Tara Humbert was also there at one location; 5. he has known the applicant since approximately 1999, and has met him many times. When he first met him he appeared to be an acquaintance of a number of people involved in the Western Australian music industry scene. The applicant was an ex housemate of a drummer friend of his, Daniele Dipaola and he (Mr Charles) met the applicant when he attended a party at his house; 6. at some point prior to the Shortcut Trip, the applicant had indicated to him that he wanted to be employed in the film and television industry, and that he had some experience as a camera man although it was his understanding from conversations with the applicant around the period of 2000 that he had struggled to find employment in the industry and this had made life hard for him financially. He was often concerned for the applicant's wellbeing and felt sorry for him. He was happy to let the applicant 'hang out' with him and the other band members of Seahorse Radio as he thought it may be beneficial for him to have some company. The arrangement between him and the applicant other thanthat the applicant, in return for helping with the filming, would get a copy of the footage and the music and be able to use them in other projects. The band did not have funds for professional services except for those services which were either provided for free at "mates rates"; 7. during the weekend of filming, the band members and the applicant travelled to each of the locations listed on his (Mr Charles) storyboard and where footage was shotbased on the sketches on the storyboard; 8. the video camera used during the shoot had been borrowed from a person named Rommel, who was a friend of Mr Winterflood. In his (Mr Charles') opinion, the camera was "for holiday snaps" and was relatively easy to use, although it was quite an expensive camera. He described it as a 'point and click' camera; 9. each of Mr Charles, Mr Winterflood and the applicant took turns operating the video camera at the various locations; 10. the costs of the filming trip of approximately $300 for video tapes and subsequent editing were borne by the band members and not by the applicant. The applicant was not paid for the filming work which he performed although the band members paid for his food and accommodation. 34 Over the course of his lengthy cross-examination, Mr Charles gave further evidence as to the filming that took place at each of the locations. He said that:

1. on the Friday night, the participants travelled to Northbridge in his car. Miss Letheby sat in the front passenger seat while he drove along James Street. The applicant sat in the back seat, leaned forward and filmed Miss Letheby and, behind her, the scenery passing the passenger side window. Their song was played in the car as they travel along James Street which explains a scene in the Slide music video where a gentleman approached the car and began dancing beside it;
2. the applicant also filmed Miss Letheby walking along a Northbridge street;
3. possibly at about this time, although it was unclear on the evidence, the applicant shot footage of him playing a saxophone on a footbridge over the Kwinana Freeway in central Perth;
4. the applicant also filmed traffic through the front windscreen of his (Mr Charles') car as the participants drove back to his (Mr Charles') house on the Friday night;
5. on the Saturday morning, the participants travelled to an abandoned power station in Cockburn where the applicant filmed a series of shots containing Miss Letheby and another person, Tara Humbert. The band members viewed the footage on the camera's play-back screen and decided that they were not happy with the shots of Miss Humbert;
6. at this point, the applicant dropped the camera and chipped the casing of the lens. While the camera was still functional, the band members and Mr Winterflood in particular were concerned that an expensive piece of equipment that belonged to someone else had been damaged. As a result, the applicant's use of the camera was reduced for the remainder of the weekend;
7. before moving to the next location the band filmed more footage at the abandoned power station, this time featuring only Miss Letheby. He could not recall whether he or Mr Winterflood had filmed this footage, but was adamant that the applicant had not filmed the footage as he had effectively had the camera taken away from him at that point;
8. the participants then travelled to a bridge in Fremantle where he (Mr Charles) filmed a number of sequences, including one of Miss Letheby walking under the bridge;
9. on the Saturday night, the participants, with the exception of Mr Winterflood, who was performing with another band that night, borrowed a truck from a Rob Grant, who worked at the studio where the band recorded. The applicant stood on the tailgate of the truck and filmed as the truck was being driven by him (Mr Charles) through the Northbridge tunnel. The applicant then again filmed traffic scenes (from inside the truck) as he (Mr Charles) drove back to his South Perth home;
10. early on Sunday morning, the participants travelled to Leighton Beach in North Fremantle where Miss Letheby was filmed walking into and coming out of the ocean. Three takes of this sequence were filmed. He filmed the first take, but as he had trouble operating the camera and at the same time giving directions to Miss Letheby, the applicant filmed the remaining two takes;
11. the applicant then filmed footage of Miss Letheby being surrounded by fire on Leighton Beach. The shot was his (Mr Charles') idea and he set up the shot by pouring a circle of petrol on the beach and setting it alight;

Slide 52 Mr Charles arranged for the Slide music video to be edited by Mr Skender. It primarily involved the footage of Miss Letheby being driven down James Street in Northbridge which had been filmed by the applicant on the Friday night. Overlaid with that sequence were some of the traffic shots taken by the applicant on the Friday and Saturday nights, and the shot of Mr Charles playing saxophone on the footbridge which was filmed by the applicant. 53 I find that the Slide music video was written, directed, produced and edited by persons other than the applicant, and that the applicant did not bear any of the costs of its production. The applicant's involvement in the music video was limited to holding the camera and taking footage based on the storyboard which I accept was produced by Mr Charles. I find it highly improbable that, as the applicant would have it, the filming sequences were unplanned and impromptu, directed on site by him. I accept the evidence of Mr Charles in his cross-examination by the applicant that he prepared a storyboard comprising some 2½ pages a week before the weekend of shooting; that he showed the storyboard to the band for approval and that he organised the 'Shortcut' trip according to the locations contained in the storyboard. These locations, I find, were chosen by Mr Charles because they were personal in the sense that they meant something to him and the members of the band. I find that, as Mr Charles explained in cross-examination, the film shooting which took place over the weekend operated from this storyboard. His evidence in these respects was detailed and credible.

Burning in Water 54 The Burning in Water music video was edited by Mr Merlin Cornish. It included a number of scenes which were filmed during the weekend trip, including: 1. the scenes filmed at the abandoned power station although not those scenes filmed by the applicant which included Miss Humbert; 2. scenes filmed by Mr Charles at the Fremantle bridge; 3. scenes filmed by the applicant of Miss Letheby walking in Northbridge; 4. the shots taken by Mr Winterflood wearing rollerblades in the underpass and in the train station bathroom; 5. the shots of Miss Letheby at Leighton Beach. Mr Charles was not sure whether the footage used in the video was the first take which had been filmed by him, or one of the takes filmed by the applicant; 6. the shots of Miss Letheby's artwork which had been filmed by Mr Charles; 7. the shots in the South Perth park which had been filmed by Mr Charles (and, briefly, Mr Winterflood); and 8 the scene at Mr Winterflood's home in Innaloo which had been filmed by the applicant. 55 I find that this music video was written, directed, produced and edited by persons other than the applicant, and the applicant did not bear any of the costs of its production. The applicant's involvement in the music video was limited to holding the camera and taking some of the footage, at the direction of Mr Charles. The footage used in the music video was filmed by Mr Charles and Mr Winterflood, as well as by the applicant.

Lost and Distorted 56 The Lost and Distorted music video was edited by Mr Cornish. It included a number of scenes which were filmed during the weekend trip, including the scenes filmed at the abandoned power station although not those scenes filmed by the applicant which included Miss Humbert, scenes filmed by Mr Charles at the Fremantle bridge and the shots taken by Mr Winterflood wearing rollerblades. 57 The video also included footage of a Seahorse Radio live performance at a venue known as Mojo's some months after the other footage was taken. Mr Charles gave evidence that this live footage was arranged by Mr Skender, for which the band paid him $250. There were, according to Mr Charles, three cameras used in the live shoot: a fixed camera operated by Mr Skender at the back of the room, a camera operated by the applicant who was located to the left of the stage, from the audience's viewpoint, and a camera operated by a third person located to the right of the stage. Mr Charles was not aware of the identity of this third person. 58 The applicant, cross-examining Mr Charles, put to him that only he, the applicant, had shot the footage at Mojo's and that there were no other camera operators. Mr Charles refuted this. The applicant himself did not give evidence as to these matters. There was considerable time spent by the applicant in his cross-examination of Mr Charles in an attempt to have him concede that in fact it was only the applicant who shot the Mojo's footage. I accept, importantly, the evidence of Mr Charles that he arranged with Mr Skender, who was a film editor, to provide the filming equipment and conduct the shoot at Mojo's. Mr Charles was involved during the performance as one of the band members. The venue was crowded with little room for movement. The actual music video viewed during the trial clearly shows a number of different camera angles from different parts of the venue. Whether there was a third cameraman is an issue I find it unnecessary to decide. What is significant is that I do not accept the applicant's evidence that he was the only cameraman or that he arranged for the shoot to take place. I find that Mr Charles arranged for the shoot to be taken by Mr Skender. I accept the evidence of Mr Charles that Mr Skender operated a fixed camera position which enabled him to project some live shot over on top of the band as it was performing. 59 Pursuant to the arrangement made between Mr Charles and Mr Skender the responsibility for filming was Mr Skender. According to Mr Charles, Mr Skender told him that the plan was to have three camera positions. However, Mr Skender did not give evidence and I do not regard this evidence as proof that there were in fact three cameramen. Mr Skender consulted with Mr Charles when he was setting up the cameras prior to the "gig". Mr Skender was also involved in the set-up of all of the white screened areas of the back of the venue so that the projection would work. 60 I also accept that Mr Skender was paid $250 for his services, including the provision of cameras and other film equipment, by members of the band. The applicant used one of the cameras provided by Mr Skender. 61 I find that this music video was written, directed, produced and edited by persons other than the applicant, and that the applicant did not bear any of the costs of production of the music video. The applicant's involvement in the music video was limited to holding the camera and taking footage at the direction of Mr Charles and in the case of the footage at Mojo's at the direction of Mr Skender. The footage used in the music video was filmed by Mr Charles, Mr Winterflood, Mr Skender and, at Mojo's, possibly by a third cameraman, as well as by the applicant. 62 I accept Mr Charles' evidence that he invited the applicant to come along to the 'Shortcut' trip but that, in any event, the "photoshoot would have gone ahead without [the applicant]". Accordingly I find that in respect of the music videos Slide, Burning in Water and Lost and Distorted that the applicant was not "the person by whom the arrangements necessary for the making of the film were undertaken" and was not therefore the "maker" of the film: s 22(4)(b) of the Act. That person was, I find, Mr Charles. The applicant, for these reasons, is not the owner of the copyright in the cinematographic films constituted by these music videos.

Ownership of copyright in Crawlspace Afraid music video 63 In relation to the music video "Afraid", Ross Stewart, who was the manager of the band Crawlspace at the relevant time, gave evidence to the effect that:

1. the members of the band, Russell Smith, Daniel Bowles and Chris Webber, wrote and recorded the song;
2. together they came up with the concept for the music video, which revolved around horror scenes to reflect the song's title Afraid, and produced a storyboard for the music video;
3. the shooting of footage for the music video was directed by Cindy Morris;
4. the band made all of the arrangements for the filming of the footage for the music video and the costs which, as manager, he approved were borne by the band's management account which he operated;
5. although he was unaware of it at the time, the applicant may have been involved in the filming of the music video;
6. the music video featured footage of the band playing in front of a white screen, intercut with black and white footage from horror movies;
7. Mr Stewart edited the music video at his home in Mirrabooka in consultation with Ms Morris and Mr Webber and, to a lesser extent Mr Smith and Mr Bowles. The editing was done by him using his Media 100 editing system with some assistance from members of the band and Ms Morris. The applicant was not involved in the editing process; and
8. several times between approximately 1999 and 2000 he allowed the applicant to come to his home in Greenwood, Western Australia, and use his Media 100 edit facility free of charge. The applicant had indicated to him that he wanted to use the edit facility to create material which he hoped would assist him gain employment in the film and television industry. 64 The applicant's evidence was that:
9. he, and not Ms Morris, directed the music video;
10. he did not use a storyboard produced by the bandbut came up with his own ideas for the music video; 3 he filmed all of the footage for the music video (apart from the black and white scenes which were added in the editing process);
11. he contributed to the cost of hiring the camera but could not remember as to what extent. 65 Mr Stewart has had a long and impressive involvement in the music industryfor over two decades. He operated in a variety of roles in the industry during that time, including as an artist, studio engineer, production company manager, band manager, and record label/publishing company owner. Currently he works for Altered State Pty Ltd who promote The Big Day Out, Soundwave and Origin Festivals in WA. Previous to this he was the managing director of Westlink Multimedia Pty Ltd exclusively representing MGM distribution in WA and assisting acts such as John Butler Trio, The Waifs, The Panics, Karnivool and many more. From approximately 1998 to 2000 he was the manager of a band called Crawlspace. The band members at the time were Russell Smith, Daniel Bowles and Chris Webber. 66 I found him to be an honest and forthright witness. Further, he has no pecuniary or other interest in this litigation. I accept his evidence. The applicant, in cross-examination conceded that the band members of Crawlspace had prepared a storyboard for the production of the 'Afraid' music video. He said, however, that it was "very vague and limited owing to their lack of experience in the film industry." He then said: At that point I dismissed it immediately as boring and primitive and told Crawlspace that I was quite confident to go into live production improvising all of the shot sequences. I saw a vague series of sketches which I didn't even understand which took up about half a page in length and by the time I had observed this amateurish attempt I had become bored and dismissed it and told them that I would virtually just fly by the seat of my pants in live production, that I would improvise. 67 These passages are an illustration of the applicant's self promotion, accompanied, as it often was, by gratuitous denigration of the others involved. I do not believe his evidence in this respect. I find that Cindy Morris, who had experience in photography, directed the shoot using the storyboard. 68 Again, I find it highly improbable that the applicant would have shot the scenes in the film spontaneously on location without any pre-planning. That he played no part in the editing process also assists in my conclusion that he was not involved in the production of the film. I do not accept the applicant's evidence that he made a financial contribution to the cost of hiring the camera. Where the evidence of the applicant is inconsistent with that of Mr Stewart, I prefer the evidence of Mr Stewart. 69 I find that the music video was written, directed, produced and edited by persons other than the applicant, and the applicant did not bear any of the costs of production of the music video. The applicant's involvement was limited to shooting footage at the direction of Ms Morris. 70 I find that the applicant was not "the person by whom the arrangements necessary for the making of the film were undertaken" and was not therefore the "maker" and accordingly not the owner of the copyright in the cinematographic film constituted by the Afraid music video. I find that all of the band members together were the producers or makers of this music video.

Ownership of copyright in T-Cells Implant music video 71 In relation to the music video "Implant", Mr Stewart gave evidence that:

1. the members of the band T-Cells wrote and recorded the song;
2. the applicant may have been involved in the filming of the footage for the music video;
3. the music video was edited by him in consultation with Steve Deschamp, a member of the band;
4. the applicant may have been present but was not actively involved in the editing of the music video; 72 The applicant has given evidence that:
5. he was the director of the music video;
6. he filmed all of the footage for the music video. 73 The applicant also stated during cross-examination that the footage for the T‑Cells Implant music video was filmed over "an extended period covering a number of years". That is inconsistent with the applicant's statement (at page 42 of the respondent's book of witness statements) that the footage which was in possession of Steven Deschamp (the lead singer of the band T-Cells) was filmed in August 2000 in Yallingup, Margaret River and Booranup. 74 In relation to Implant the applicant appears to accept Mr Stewart's evidence that he was present but was not actively involved in the editing process of the music video. My conclusions in relation to the applicant's lack of involvement in the editing process for the other music videos are replicated here in respect of the Implant music video. 75 I find that this music video was written, produced and edited by persons other than the applicant, and the applicant did not bear any of the costs of production of the music video. The applicant was not "the person by whom the arrangements necessary for the making of the film were undertaken" and was not therefore the maker of the music video. He was accordingly not the owner of the copyright in the cinematographic film constituted by the Implant music video.

Jones v Dunkel 76 In certain circumstances, a failure by a party to call a witness may lead to an inference that that person's evidence would not have assisted the party's case: Jones v Dunkel (1959) 101 CLR 298. 77 The rule in Jones v Dunkel cannot be applied to the non-calling of a witness unless:

1. it would be natural for the party to call the witness;
2. the witness is presumably able to put a true complexion on the facts; and
3. the explanation for the absence of the witness is not offered or that the explanation given is unsatisfactory; See: Payne v Parker [1976] 1 NSWLR 191 at 201-2 per Glass JA.

78 I find in relation to all of the music videos that they were expressly initiated by the various band members with a view to promoting their songs, for example on the respondent's 'rage' program. I accept that the applicant had been allowed to take copies of the footage filmed for his own purposes. However, that was incidental to the bands' objectives. The music videos, I find, would have been filmed whether or not the applicant had been prepared to assist with the camera work. 79 I specifically reject as thoroughly implausible the applicant's central explanation that he had arranged with the various bands for the music videos to be filmed primarily to be posted on a website. 80 According to the applicant this website was "to attract the membership of artists whilst promoting their works". Tellingly, as the applicant conceded, no material from other bands or artists was ever posted on such a website. 81 This evidence is set out under para [9] above at sub-para 4. It was also put as follows in oral evidence by the applicant during his cross-examination: What was the - doing the best you can, what was the substance of the words he used between you and Mr Charles that you say gave rise to an agreement?---I had told him that I still had contacts with the ABC and that I had the possibility of selling my footage to an executive producer along the lines of a documentary of the music industry or, you know, and that a website with a server running, operating it's own ISP from California was looking to receive any footage that I had and lay it on its network in a cache that was dedicated to me as a website as other film producers had done with this website - I believe it was the first MP3, 1999, it was the first MP3 radio station in Australia called Shazam Radio. 82 I do not believe the applicant when he said that he contributed to the cost of the tape used to shoot this music video. I conclude that the applicant was driven to give this evidence in respect to all the music videos to bolster his case that the music videos were his projects. 83 The applicant bears the onus of proving that he is the owner of the copyright in the music videos. 84 The applicant gave evidence but did not call any other witnesses. The following people, it appears, could have given relevant and admissible evidence on that issue:

1. Russell Smith; Daniel Bowles and Chris Webber, who were the members of Crawlspace;
2. Cindy Morris;
3. Steve Deschamp; and the other members of the T-Cells;
4. Nathan Winterflood and Keren Letheby who were members of Seahorse Radio. 85 The respondent does not assert that a Jones v Dunkel inference arises against the applicant in respect of his failure to call Mr Smith, Ms Morris or Mr Deschamp as the applicant had earlier sued them as part of these proceedings. The respondent declined to make such a submission against Mr Winterflood and Ms Letheby. As to Mr Winterflood, evidence was given that the relationship between he and the applicant was such that the applicant would not be expected to call Mr Winterflood as a witness. 86 As to Ms Letheby, evidence was given that she is the partner of Ronan Charles who gave evidence for the respondent. The applicant would not be expected to call her as a witness. 87 As to Mr Bowles, Mr Webber and the members of the T-Cells other than Mr Deschamp, the respondent submits that a Jones v Dunkel inference ought be drawn in respect of the failure of the applicant to call those witnesses to the effect that the evidence of those witnesses would not have assisted the applicant's case. I accept this submission. They would have been in a position to give evidence as to the circumstances in which the music videos 'Afraid', in the case of Bowles and Webber, and 'Implant' in the case of the other members of T-Cells, had been filmed and whether or not it was pursuant to the objective stated by the applicant or that described by Mr Stewart. No explanation was afforded by the applicant as to why he did not call these witnesses or any of them. 88 However, even absent the drawing of these inferences I would have had no difficulty in arriving at the conclusions of fact set out above. These inferences merely strengthen the already very strong foundation for making those findings.

Remedies for infringement 89 If a person is found to have breached copyright, the Court may award an injunction and either damages or an account of profits: s 115(2) of the Act. 90 The applicant is required to make an election prior to judgment as to whether he claims damages or an account of profits: Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (in liq) (2007) 157 FCR 564 at [24]. The applicant has elected to seek damages in respect of the alleged infringements. 91 The purpose of an award of damages is to compensate the applicant for the loss suffered as a result of the respondent's infringement. The measure of damages is to be, so far as is possible, that sum which will put the copyright owner in the same position he would have been in had the copyright not been infringed: Bailey v Namol Pty Ltd (1994) 53 FCR 102 at 110-111 per Burchett, Gummow & O'Loughlin JJ. 92 The applicant has not adduced any evidence as to the loss or damage he alleges he has suffered by reason of the respondent's alleged infringement, other than very generalised statements made in his evidence in chief. Those statements, to the extent they are admissible, are not particularised and are not demonstrative of any loss.

Innocent infringement 93 Damages are not available where the respondent was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright: s 115(3) of the Act. 94 The respondent submits that any infringement of copyright was an innocent infringement, and therefore damages are not available pursuant to s 115(3) of the Act. 95 It is unnecessary in light of my conclusions that the applicant is not the owner of the copyright in any of the music videos to further consider this aspect of the respondent's defence.

Moral rights 96 During the course of the hearing, the applicant, for the first time, indicated to the Court that he relied on a number of sections of the Act, namely ss 195AA, 195AF and 195AL (moral rights provisions).

Right of attribution of authorship 97 Section 195AA of the Act provides that an identification of the author of a work must be clear and reasonably prominent. For the purposes of the moral rights provisions, "work" includes a cinematograph film: s 189. 98 Section 195AR(1) provides that a person who does not identify an author of a work does not infringe the author's right of attribution if the person establishes that it was reasonable in all of the circumstances not to identify the author. Section 195AR(3) provides that the matters to be taken into account in determining whether it was reasonable not to identify the maker of a cinematograph film include, among others: (a) the nature of the film; (b) the purpose for which the film is used; (c) the manner in which the film is used; (d) the context in which the film is used; (e) any applicable industry practice or voluntary code of practice; or (f) any difficulty or expense that would have been incurred as a result of identifying the maker.

Right not to have work falsely attributed 99 Section 195AC provides that the author of a work has a right not to have authorship of the work falsely attributed. Section 195AF(2) relevantly provides that it is an act of false attribution to: (a) insert or affix a person's name on the film or a copy thereof in such a way as to imply falsely that the person is the director, producer or screenwriter of the film; or (b) deal with the film or a copy thereof if a person's name has been so inserted or affixed and the attributor knows that the person is not the director, producer or screenwriter; or (c) communicate the film to the public as being a film of which a person is the director, producer or screenwriter if the attributor knows that the person is not the director, producer or screenwriter.

Right of integrity of authorship 100 Section 195AI provides that the author of a work has the right not to have the work subjected to derogatory treatment. Section 195AL provides that derogatory treatment, in relation to a cinematograph film, means: (a) the doing of anything that results in a material distortion of, the mutilation of, or a material alteration to, the film that is prejudicial to the maker's honour or reputation; or (b) the doing of anything else in relation to the film that is prejudicial to the honour or reputation of the maker of the film. 101 Section 195AS(1) provides that a person who subjects a work to derogatory treatment does not infringe the author's right of integrity of authorship if the person establishes that it was reasonable in all the circumstances to subject the work to the treatment. Section 195AS(3) provides that the matters to be taken into account in determining whether it was reasonable to subject a cinematograph film to derogatory treatment include, among others, the following: (a) the nature of the film; (b) the purpose for which the film was used; (c) the manner in which the film is used; (d) the context in which the film is used; (e) any industry practice or voluntary code of practice; (f) whether the treatment was required by law or necessary to avoid a breach of any law.

Failure to notify respondent of reliance on moral rights provisions 102 Neither the applicant's application dated 19 December 2006 nor his written statement which was ordered to stand as his statement of claim referred to the moral rights provisions. 103 The applicant did not notify the respondent of his reliance on the moral rights provisions at any time prior to concluding his evidence at trial. It was not until the respondent had opened its case and completed the evidence-in-chief of its first witness, that the applicant, in response to a question from the Court, referred to the moral rights provisions. 104 It is a fundamental principle that a party is entitled to be informed about its opponent's case with sufficient clarity and particularity to allow that party a fair opportunity to meet the case: Dare v Pulham (1982) 148 CLR 658 at 664. 105 If, prior to the commencement of the trial, the respondent had been aware of the applicant's intention to rely on the moral rights provisions, the respondent may have elected to adduce evidence as to:

1. its alleged failure to attribute the authorship of the music videos to the applicant;
2. each of the factors referred to in s 195AR(3);
3. its alleged false attribution of authorship of the music videos; and
4. each of the factors referred to in s 195AS(3).

106 I am not prepared by reason of the applicant's failure to notify the respondent of his intention to rely on the moral rights provisions, to permit the applicant to rely on those provisions. In any event these matters were not pressed by the applicant in closing submissions.

Conclusion 107 For all these reasons I am well satisfied that the applicant has failed to demonstrate that, at any material time, he was the owner of the copyright in the music videos. His causes of action for alleged infringement of copyright must, it follows, for that reason alone necessarily fail. In any event his actions in respect of the music videos Afraid, Implant and Slide are time barred by virtue of s 134 of the Act.

Orders 108 There will be orders that the application be dismissed with costs.

I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.