Justified Hesitation

In August 2025, the Full Court of the Federal Court of Australia ruled that copyright in footage of a meat production company’s premises and practices, surreptitiously obtained by animal rights activists, was held on constructive trust for that company. This meant that the activists could not legitimately publish or license that footage, even though the filmmaker is the ‘author’ under copyright law. It also meant the activists were required to transfer the copyright in the footage to the meat production company. This paper suggests four reasons why this finding may be premature: the tentative nature of previous High Court of Australia obiter dicta that ‘opened the door’ to a constructive trust being recognised over copyright, the distinct features and aims of copyright, the availability of other remedies, and the tension of the Court’s approach with the moral rights authors have under copyright law. This analysis suggests there is good reason for courts to be hesitant to apply a constructive trust over copyright in the future.