Who calls "Action" on credits?: Behind the scenes on landmark Federal Court decision on moral rights

A dispute over the crediting of a documentary film has yielded one of Australia's most significant moral rights decisions. In McCallum v Projector Films Pty Ltd [2026] FCA 173, the Federal Court has delivered a stark warning for the media, film and broader content industries: moral rights cannot simply be contracted away with general waivers, public-facing attribution carries real legal risk, and businesses commissioning creative content need to rethink how their agreements deal with credits and consents – or face exposure under the Copyright Act, contract law, and the Australian Consumer Law.

The decision is the first in Australia to rule directly on whether a blanket contractual waiver of moral rights is legally effective, and the answer is an unequivocal 'no'. However, the case goes beyond a single documentary dispute about credits. It resolves novel questions about directorship attribution and the consequences of misattributing creative credits in promotional materials. For anyone commissioning or distributing content in Australia, the decision has immediate and practical implications for contracting, crediting and risk management.

The backstory: a tale of two directors

The dispute arose from a documentary film, “Never Get Busted!”, which tells the story of Barry Cooper, a former Texan narcotics officer turned drug reform activist. The film took over five years to complete and was screened at high-profile international festivals, including a world premiere at the Sundance Film Festival and its Australian premiere at the Melbourne International Film Festival.

Stephen McCallum had been engaged under a director's agreement to direct the documentary and executed detailed work during pre-production and production phases. The production company Projector Films – led by David Ngo, who conceived the documentary’s idea together with fellow co-creator Erin Williams-Weir, and occupied a multifaceted role as producer, writer, and editor – credited Mr Ngo with a "Written & Directed by" credit, relegating McCallum to a lesser "Director" credit. On the Sundance Film Festival website, Mr McCallum received no credit at all, while Mr Ngo was described as making his "directorial debut". In the version of the documentary screened at the Festival, Mr McCallum was credited only as "Director", with Mr Ngo receiving the more prestigious "Written & Directed by" credit.

Mr McCallum brought proceedings in the Federal Court, alleging that:

• his moral rights under the Copyright Act 1968 (Cth) had been infringed;

• Projector Films had breached the director's agreement; and

• Projector Films and Mr Ngo had engaged in misleading or deceptive conduct under the Australian Consumer Law (ACL).

The issues that took centre stage: who gets the credit and can you contract it away?

The judgment addressed each of these claims in detail, with two central questions of particular significance for the media industry.

The first was a question that might sound straightforward but proved legally significant: who is the principal director of a film?

Under the Copyright Act, the authors of a film include the principal director(s), the principal producer(s) and the principal screenwriter(s). Where a film has more than one director, only the "principal director" is recognised for directors’ moral rights purposes. Those moral rights include the right to be attributed as the author of the work and the right not to have authorship falsely attributed to someone else. For a director, these rights are not merely symbolic – proper attribution in the industry can directly impact career prospects and professional reputation.

The second issue was equally consequential for businesses that routinely commission creative work: can a blanket contractual waiver effectively extinguish a creator's moral rights?

The Copyright Act permits consents to conduct which would otherwise infringe moral rights, for example, under section 195AW(1) of the Copyright Act:

“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.”

Clause 6.2 of the director's agreement purported to have Mr McCallum "waive all moral or other similar rights" in connection with the documentary, throughout the world in perpetuity. Projector Films argued this constituted a valid general waiver, or alternatively a consent to any conduct that might otherwise infringe Mr McCallum's moral rights. This was a novel question in Australia as no court had previously ruled directly on whether such blanket waivers are legally effective.

The Court's findings: blanket waivers held unenforceable

The Federal Court found in favour of Mr McCallum on the central issues.

On the question of who qualified as principal director, the Court looked at the actual work done, rather than job titles or contractual labels. While Mr Ngo was found to be a director of the documentary (particularly for his contributions during the post-production and editing phases), the Court held he was not the "principal director". That title belonged to Mr McCallum alone, as the chief or main person amongst others who had management, control, supervision and/or responsibility over the creative process of translating the script and idea of the documentary into the medium of a film.

In reaching its conclusions on directorship, the Court made significant credibility findings, rejecting much of Mr Ngo's evidence as "self-serving and revisionist" and preferring the contemporaneous documentary record. The Court observed that Mr Ngo had sought to downplay Mr McCallum's contributions in order to promote his own claim to the directing credit.

As to whether the general waiver clause was enforceable, the Court held that the text, context and purpose of Part IX of the Copyright Act do not support a general waiver of moral rights. It was reasoned that moral rights are personal, non-transmissible and inalienable in nature – fundamentally different from copyright – and that Parliament had deliberately enacted a specific regime of written consents to acts of infringement, rather than permitting broad waivers. Allowing general waivers would render the carefully calibrated statutory consent provisions redundant.

The Court also found that clause 6.2 could not be recharacterised as a consent, as the words of the clause constituted a general waiver and not a consent to specific acts or omissions. In any event, the clause's second sentence granted consent only to "material alterations", underscoring that the first sentence operated as a general waiver, not a written consent under the Act. As such, it was found that, by failing to credit Mr McCallum as the principal director and by conveying, through the hierarchy of credits, that Mr Ngo was the principal director, Projector Films had:

• infringed Mr McCallum's moral rights of attribution and right against false attribution (and that Mr Ngo had also infringed those rights by authorising the affixation of credits conveying that he was the principal director);

• breached its contractual obligations; and

• contravened section 18 of the ACL in respect of several representations made in promotional materials, including on the IMDb and the Sundance Film Festival websites.