Hill v Lang

[2011] FMCA 573

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HILL v LANG [2011] FMCA 573

COPYRIGHT – Action for breach of copyright of cinematographic film and sound recording – applicant found not to be the owner of the copyright – application dismissed.

Copyright Act 1968 (Cth), s.10, 22(4) and sub-ss.98(2) & (3)

Seven Network (Operations) Ltd v TCN Channel 9 Pty Ltd [2005] FCAFC 144

Applicant: BRENTON HILL

Respondent: FRANK LANG

File Number: ADG 100 of 2009

Judgment of: Simpson FM

Hearing date: 16 December 2010

Date of Last Submission: 17 December 2010

Delivered at: Adelaide

Delivered on: 27 July 2011

REPRESENTATION

Applicant: In person

Respondent: In person

ORDERS

1. The Application be dismissed.

2. The applicant do pay the respondent’s costs to be agreed or taxed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 100 of 2009

BRENTON HILL

Applicant

And

FRANK LANG

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for damages for breach of copyright in a cinematographic film with a sound recording which has been brought by the applicant, Brenton Hill.  Mr Hill has the nick name “Benny” and was sometimes referred to as such in the evidence.

2. Neither party has had legal representation throughout the proceedings.  Whilst orders were made that the matter proceed by way of pleadings, I have not found the Statement of Claim and Defence to have properly identified the issues to be decided.  This is, in large part, as a result of the applicant making no effort to comply with the rules as to pleadings.  In the circumstances, I have not thought it appropriate to make further orders that the parties file amended pleadings that comply with the Rules.  Instead, I have proceeded on the basis that the trial concerns each of the parties claiming that they are the true owner of the copyright.  I have also allowed affidavits to be received as evidence notwithstanding that they contain much objectionable material and do not comply with the rules.  I have thought it necessary to adopt this approach to pleadings and evidence as no adjournment of the proceedings or further trial directions would, in my view, be likely to result in a significant improvement in either.

3. In these reasons a statement of fact is to be treated as a finding of fact arrived at on the balance of probabilities after a consideration of all of the evidence that has been put before me, whether oral or by affidavit, and my assessment of the witnesses.

The Evidence

1. The applicant relied on the following affidavits:

   a)Affidavit of Brenton Hill, sworn 16 September 2010 and filed the same day;

   b)Further affidavit of Brenton Hill, sworn 16 September 2010 and filed the same day;

   c)Affidavit of Brenton Hill, sworn 8 October 2010 and filed the same day;

   d)Affidavit of Brenton Hill, sworn 15 October 2010 and filed the same day; and

   e)Affidavit of Brenton Hill, sworn 2 December 2010 and filed the same day.

2. The respondent relied upon the following affidavits:

   a)Affidavit of Frank Lang, sworn 6 October 2010 and filed the same day;

   b)Affidavit of Martin McNichol, sworn 5 October 2010 and filed on 6 October 2010;

   c)Affidavit of Frank Lang, sworn 5 October 2010 and filed on 6 October 2010; and

   d)Affidavit of Trevor Draper, sworn 5 October 2010 and filed on 6 October 2010.

3. Mr Hill gave evidence but called no other witnesses.  Mr Hill says that the respondent Mr Lang engaged him to be a camera operator in relation to the filming of a performance of Mr Lang’s band “Hoy-Hoy!” (“the band”) held on 13 November 2005.  Mr Hill denies that there was any agreement for Mr Lang to pay Mr Hill for his work as a camera man.  He says that his position in the project gives him copyright to the film and sound recordings that were produced.  He seeks damages for the respondent’s infringement of copyright.

4. Mr Lang gave evidence and called three witnesses; Martin McNichol, David Salamon and Trevor Draper.

5. Mr Lang says that it was his idea to make the DVD and that it was he who was the driving force for the project.  He gave detailed evidence of numerous arrangements that he made for the film to be produced including arranging finance, selecting personnel, selecting a venue and artists to perform, as well as instructing those engaged in the project as to how they should perform their duties.  Mr Lang says that he engaged Mr Hill to be a camera operator and editor and that there was an agreement that he would be paid for his work.  Mr Lang says that he had agreements with two other camera operators and that they too were paid for their services.  Mr Lang says that after the filming, he paid each of the three camera operators for their services.  He also reimbursed Mr Hill for certain other expenses that Mr Hill paid for in relation to the project.  Mr Lang says that he is the owner of the copyright in relation to the cinematographic film and sound recording.

6. Mr McNichol described himself as a video producer and editor.  Mr McNichol was engaged by Mr Lang in 2007 and therefore well after the film was shot and sound recorded.  He was engaged to assist with the editing of the film and sound recordings as that it could be made into a commercial DVD.  Mr McNichol’s evidence is particularly relevant in relation to certain conversations that he says he had with Mr Hill in about September 2009.  Mr McNichol says that Mr Hill came to his home to tell him (ie Mr McNichol) that he was going to be added as a further respondent to these legal proceedings and asked Mr McNichol how he felt about that.  Mr McNichol responded by asking Mr Hill whether he had come to his house to threaten him in circumstances where Mr McNichol did not know Mr Hill and did not consider that he was involved in the legal issues that Mr Hill had with Mr Lang.  Mr McNichol says that at some stage in the conversation he asked Mr Hill whether he had been paid to which Mr Hill responded that he had been paid but had not received as much as Mr McNichol had been paid.  Mr McNichol then asked Mr Hill how much he had been paid and he said $500.  Mr McNichol then asked Mr Hill whether he realised that in accepting a commission for the work done as a camera operator, the person who commissioned him owned the copyright and that Mr Hill’s position was therefore flawed.

7. Mr Lang called David Salamon as a witness.  He gave his occupation as documentary film maker.  Mr Salamon says that he was present at a meeting at the Governor Hindmarsh Hotel in 2005 when Mr Lang discussed making a DVD out of a performance of the band.  Mr Salamon said that he was to be a camera operator as was Mr Hill and Rachel Thompson, a friend of Mr Salamon.  He says that Mr Lang made it clear at the meeting that all of the camera operators were to be paid but, because of the tight budget, were to be paid only small sums of money.  Mr Salamon says that he was paid for his camera work as was Ms Thompson.

8. Trevor Draper gave evidence.  Mr Draper said that he had been a drummer in the band for over ten years.  He was also the person who looked after the band’s finances.  He says that Mr Lang was the creator of the band, the person who looked after bookings for the band, the leader of the band, and the person who initiated the production of the DVD of a special performance of the band.  Mr Draper says that prior to the show, he had paid Mr Hill $570 in cash from the band’s funds to enable him to purchase film stock and to hire cameras for the shoot.

Assessment of Witnesses

1. Whilst I acknowledge that there are inconsistencies in the cases presented by each of the parties, in relation to the major issues I prefer the evidence of the respondent.  Mr Lang gave his evidence well and was confident and direct with his answers.  Mr Lang’s evidence is substantially corroborated by the evidence of his other witnesses.  In particular, I accept the evidence of Mr Lang and Mr Salamon that there was agreement reached at the July 2005 meeting that all camera operators were to be paid for the camera work that they performed.  I also accept the evidence of Mr McNichol that the applicant admitted to him that he had accepted a commission of $500 for, amongst other things, the camera operator work that he performed on the project.

The Statutory Framework

1. The definition of “cinematograph film” to be found in s.10 of the Copyright Act 1968 (Cth) (“the Act”) provides as follows:

   10 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.

   It is to be noted that the definition of cinematograph film includes the soundtrack.

2. Subsections 98(2) and 98(3) of the Act states:

   98  Ownership of copyright in cinematograph films

   …

   (2)Subject to the next succeeding subsection, the maker of a cinematograph film is the owner of any copyright subsisting in the film by virtue of this Part.

   (3) Where:

   (a)  a person makes, for valuable consideration, an agreement with another person for the making of a cinematograph film by the other person; and

   (b)  the film is made in pursuance of the agreement;

   the first mentioned person is, in the absence of any agreement to the contrary, the owner of any copyright subsisting in the film by virtue of this Part.

3. The phrase “making of a cinematograph film” in sub-s.98(3) is to be understood by reference to s.22(4) of the Act. It states:

   22 Cinematograph films

   (4)    For the purposes of this Act:

   (a)  a reference to the making of a cinematograph film shall be read as a reference to the doing of the things necessary for the production of the first copy of the film; and

   (b)  the maker of the cinematograph film is the person by whom the arrangements necessary for the making of the film were undertaken.

4. In Seven Network (Operations) Ltd v TCN Channel 9 Pty Ltd[1] Lingren J said “Professor Lahore (Copyright and Designs, at [20, 145]) states in relation to s.22(4)”:

   [1] [2005] FCAFC 144 at para 12.

   …

   The owner is therefore the producer who arranges the production of the first negative or tape of the film.  The directors, actors and others involved in the making of the film have no copyright interests in the film unless they are ‘makers’ of the film.

   Also in relation to s 22(4), Professor Ricketson states (The Law of Intellectual Property: Copyright, Designs and Confidential Information at [5.45] that the subsection’s reference to the doing of things that are necessary for the production of a film:

   … could include the business and financial ‘things’ that are necessary for the production of the first copy as much as the actual physical acts involved in its making, such as the direction, shooting and editing.

   Professor Ricketson suggests that s22(4) has the effect that ordinarily the owner of the copyright in a cinematograph film is the producer, rather than the camera operator or the director.

5. For reasons that follow, I believe that the only maker of this film is Mr Lang.

Findings

1. The respondent Frank Lang is an enthusiastic musician.  In or about 1987, he formed a band which he called “Hoy-Hoy!” (“the band”).  The band played live venues in the Adelaide area.  The modest income from the band’s activities was insufficient for any of the members of the band to give up their day jobs. 

2. As the creator and driving force behind the band, Mr Lang regularly looked at ways to promote the band and generate further income.  In 1996 and 2002, Mr Lang initiated projects to create CDs of the band’s music. 

3. In May 2005 the then members of the band, Frank Lang, David Small and Trevor Draper, met together with Mauri Berg, who was soon to become the fourth member of the band.  Mr Lang had called the meeting to discuss his idea to have a special performance of the band later in the year to celebrate the band’s 18^th birthday.  Mr Lang informed those present that he intended to invite to other performers that he had worked with over the years to also perform at the event and that the event would be filmed a sound recording made with the intention that a DVD would be produced.  Mr Lang intended that the Celebration Performance, as he called it, would take place at the Governor Hindmarsh Hotel, a well known venue for live music in the Adelaide area.  The event was to take place on 13 November 2005.

4. Mr Lang worked out a modest budget for the production of the DVD.  The existing members of the band, Messer Small, Draper and Lang each invested $367 and Mr Berg invested $80.  David “Doc” Dowe, who was a friend of Mr Lang, invested the sum of $1,000.  The band had a further $1,000 available from the band’s last CD project.

5. In June or July 2005, Mr Lang arranged a meeting at the Governor Hindmarsh Hotel to discuss the DVD project.  Those present were David Salamon, an experienced TV and film producer who was a colleague of Mr Lang at Warriappendie School where they taught, Mr Salamon’s partner Carol, Mr Hill and Mr Lang.  Mr Hill was known to Mr Lang as a music enthusiast who was also an experienced hand in film making in Australia.

6. At the meeting Mr Lang discussed with those present the nature of the project, the equipment that would be needed, the camera operators who might be available and the payments that would be made to them.  Mr Salamon said that he would ask Rachel Thompson, a camera operator that he had worked with previously, whether she would be interested in being a camera operator on the project.  Mr Lang made it clear to those attending the meeting that the budget was small and that camera operators would be paid only modest sums.

7. Subsequent to the Governor Hindmarsh meeting, Mr Salamon and Ms Thompson both indicated to Mr Lang that they would act as camera operators for $200 each.  Mr Hill agreed with Mr Lang that he would accept payment of $300 in the first instance and $200 subsequently to act as the principal camera operator on the shoot and to edit all of the camera footage into a film for release as a commercial DVD.  Mr Lang also agreed with Mr Hill that should it be necessary to hire or purchase any extra equipment or video tapes that Mr Hill should do so and Mr Lang would reimburse him for those costs.  Mr Lang also indicated to Mr Hill that should the completed film be successful in either sales or in being used on commercial television that Mr Lang would make additional payment to Mr Hill of an unspecified sum for his services as a camera operator and editor.

8. Over the next few months, Mr Lang had several discussions with Mr Hill concerning the composition of shots and the editing of live music video productions.  Mr Lang requested that Mr Hill ensure that the camera focussed on the guitar players and that shots showing the soloists techniques should be featured prominently in the filming and the final edit.  Mr Lang explained to Mr Hill that he was often frustrated watching live music performances on television when other instrumentalists are shown instead of the soloist.

9. Shortly before the day of the Celebration Performance, Mr Lang decided to hire Brenton Davis, a professional audio engineer, to capture a multi-track audio recording of the performances and to subsequently create a stereo mix of the performances for use as the film’s soundtrack.

10. The Celebration Performance took place on 13 November 2005 apparently without any difficulty.  The three camera operators shot their film and the audio engineer recorded the sound.  Soon after the shoot Mr Lang paid those who had worked on the project.  Mr Salamon was paid $200.  Ms Thompson was paid $200.  Mr Hill was paid a total of $500 (first $300 and then $200 in cash) as well as being refunded for the extra equipment hire costs.  It was then up to Mr Hill and Mr Davis to work together to create the DVD.

11. The working relationship between Mr Hill and Mr Davis was not a happy one.  For one reason or another, there was a great deal of delay in the DVD being produced.  In late October 2006, Mr Lang told Mr Hill and Mr Davis that he wanted the project finished so that the DVD could be released for the 19^th Anniversary show.  It was not.

12. In early 2007, on an occasion when Mr Lang visited Mr Hill at his home, Mr Hill produced to Mr Lang an extract from the Copyright Act 1968 and indicated that he owned copyright of the film and its associated soundtrack.  Mr Lang informed Mr Hill that he (ie Mr Lang) was the true owner of copyright in relation to the film and sound recordings by reason of sub-s.98(3) of the Copyright Act.  Mr Hill did not accept this and has continued to maintain that he alone owns copyright in relation to the film and sound recordings.

13. Mr Lang’s health deteriorated as a result of the stress associated with this DVD project.  Mr Hill failed to progress the edit and other post production activities to enable the DVD to produced.  Mr Lang’s requests that he complete the project were ignored.  Mr Lang suggested in March 2007 that he and Mr Hill use Mr Moody of the Musician’s Union of Australia, as a mediator to try to resolve the problems.  Mr Hill refused the offer and started seeking legal advice.  The matter came to a head on 4 April 2007 during a telephone conversation between Mr Lang and Mr Hill.  Mr Hill told Mr Lang that his lawyers were working on a licensing agreement in which he would be licensor and Mr Lang licensee.  Mr Lang told Mr Hill that his behaviour was unacceptable.  Soon after the telephone call, Mr Lang sent Mr Hill a letter telling him that his services were no longer required.  Mr Lang engaged Mr McNichol, a professional editor, to edit the original camera footage and audio into the final version of the performance for release as a DVD.  The DVD was released in November 2009.  Mr Hill’s moral rights were acknowledged in the completed DVD.

14. On the basis of my findings detailed above, I am satisfied that Mr Lang has sole copyright in the film and sound recordings.  It is he who has been the project’s producer.  It is he who has done the things necessary for the production of the first copy of the film.  It is he who has undertaken the necessary arrangements for the making of the film.  Mr Hill on the other hand, has been a camera operator who has performed those duties for a valuable consideration pursuant to an agreement with Mr Lang.  He has no claim to copyright.

15. The application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Simpson FM

Date:  27 July 2011