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LAWS 3046 INTELLECTUAL PROPERTY

I
MID-SESSION TAKE-HOME EXAMINATION
2
SESSION 1, 2012

BY: PANDELIS (PETER) TILIAKOS


z3253182
TO: PROFESSOR CATHERINE BOND
WORD COUNT: 3272 (3000 LIMIT+10 %)
DUE: FRIDAY 15th JUNE 2012, 4pm
TP = Time Piece
MCA = Museum of Current Art

CA = Copyright Act 1968 (Cth)

1.1 Bauer v Museum of Current Art (2012)

1.1.1 Licence or Assignment of Rights


Bauer loaned TP to MCA in exchange for financial remuneration which represents an
intention to licence the film1. This act is not classified as an exclusive licence 2 due to the
fact that there was no written contractual arrangement 3. Due to lack of evidence for
assignment or exclusive licence, MCA were required to showcase the work for the specific
purpose of displaying the film and communicating it to the public 4. Bauer can therefore not
claim infringement of copyright only breach of authors moral rights.
1.1.2 Authors Moral Rights

Derogatory Treatment Under s195AL, MCAs failure to screen his work


in accordance with his manual amounts to derogatory treatment of his
work. This is attributed to the fact that MCA mutilated, materially altered
or distorted the film to the extent where it is prejudicial to the owners
honour or reputation5. A reasonable perspective on the facts would reveal
that MCA did not distort the film to such an extent intended by legislation
and whilst his manual instructions formed an aspect of the initial licence 6,
the museums decision not to present it in such a way does not constitute
an action in a cinematographic film.

1
2
3

Seven Network (Operations) Ltd v TCN Channel Nine Pty Ltd [2005] FCAFC 144 at [36], Messager v British Broadcating Co [1927] 2 KB 543 at 550
s10(1) CA.
s10(1) CA.

s86(b),(c) CA.

s195AL(a) CA.

Breach of contract.

1.2 Clients Rights Against Direct Infringement: Bauer v Raines (2012)

1.2.1 Nature of Copyright and Subsistence


Bauers article7 represents an aggregate of visual images capable of being shown as a
moving picture and thus a cinematographic film8 under s10(1) CA. Bauer having
published9 the article under s29(1)(b) CA as maker10 of the film, upholds complete
ownership11 of copyright as director and producer. Under s90 CA, copyright would subsist
in the film TP and would thus prevent unauthorised parties from copying or communicated
the film to the public12.
1.2.2 Direct Infringement
Raines production titled TP directly infringes 13 the copyright of Bauers work satisfying:
(i)

Causal Connection In Larrikin Music Publishing v EMI Songs Australia 14,


causal connection is identified from an objective perspective15. It is clear to
notice numerous directly analogous elements between the two texts including (i)
identical choice of medium (film) and title, (ii) choice of genre/motif/plot: playing
a series of seemingly randomly ordered clips and images of clocks and (iii)
incorporation of parallel appropriations: The Hour & Why Does.

(ii)

Substantial Part16 In Network Ten v TCN Channel Nine17it is clear that


copying a substantial part relates not to quantity but quality 18. In this scenario it
is clear that Raines has adopted a substantial portion of Bauers individualistic
expression of the concept of time. This is further compounded by the exact

s 24 CA.
s 10(1) CA cinematographic 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.
8

s 29 (1)(b) CA.
10
s 22(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.
& s 189(1) CA maker: , in relation to a cinematograph film, means the director of the film, the producer of the film and the screenwriter of the film.
11
s 98 CA (1)-(3).
12

s 86 CA.

13

s 101(1) CA.

14

[2010] FCA 29.

15

by comparing the original work to the potentially infringing work and identifying the similarities from an ordinary persons perspective: Larrikin Music
Publishing Pty Ltd v EMI Songs Australia Pty lTd [2010] FCA 29; EMI Songs Australia Pty ltd v Larrikin Music Publishing [2011] FCAFC 47; Data Access
Corporation v Powerflex Services Pty Ltd [1999] HCA 49.
16

s 14(1) CA.

17

[2004] HCA 13; (2004) 218 CLR 273.

18

Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty lTd [2010] FCA 29;

appropriation of excerpts from video clips. As per Larrikin, these similarities


qualitatively adopt the core features of Bauers article.
1.2.3 Infringement of Exclusive Rights
Under these circumstances, it is evident that infringement has occurred by doing acts
comprised in copyright and namely those summarised under 86(1) CA including the
copying/reproducing19 the film and its performance20/ communication21 in public. Authors
moral rights of attribution22 and integrity also breached23.

19

s 21.

20

s 27-8 CA & Australasian Performing Right Association Ltd v Tolbush Pty Ltd (1985) 62 ALR 521.

21

s 22(6)(6A) & Telstra Corporation Ltd v Australasian Performing Right Association (1997) 191 CLR 140.

22

s 193-195AB CA.

23

s 195 AI-AL

1.3 Clients Rights Against Direct Infringement: Bauer v CTU (2012)

1.3.1 Indirect Infringement by causing a substantially similar film to be seen in public


Direct infringement had occurred because of the substantial 24 similarities between the two
cinematographic films25. These qualitatively substantial comparisons26 may be utilised to
initiate proceedings against CTU who have indirectly infringed copyright by causing the
film to be seen27 and/or communicated to the public28 notwithstanding their apparent lack
of knowledge of the infringing work. In accordance with TCN Channel Nine Pty v Network
Ten29it is clear that the material communicated to the public by CTU went to the heart of
the copyrighted work and under s101(1) CA and 27(4) is an infringement by doing acts
comprised in copyright30 where the occupier of the premises is deemed to have given the
performance in public31. Section 103(1)(b) also makes it an offence to exhibit a protected
article by way of trade, and under the current circumstances, it may be assumed that CTU
was engaging in trade activities by allowing paid entrants a licence to view their artwork.
1.3.2 Defences by CTU with rebuttal
(i)

Unconscious Copying Using Francis Day & Hunter Ltd v Bron32, a defendant
may rebut copying with evidence of independent creation or lack of familiarity. In
this scenario, CTU has been authorised33 by Raines with a licence to play her
article TP. CTU was not aware that Raines film was an infringed work and can
argue for Raines representation that the work was an independent creation and
the organisations lack of familiarity with Bauers work 34. CTU however must have
had reasonable knowledge of Bauers work or at least would have had
reasonable suspicion that an infringement had occurred. The fact that the work
had appeared at the Sydney Arts Festival, was screening in a museum
reasonably close to CTU and that Bauer had appeared in a conference and was

24

s 14(1) CA.

25

s 86 & 90 CA.

26

Bauer v Raines (2012) see above explanation of substantial part and causal connection

27

s 86(b)(c) CA

28

s 22(6)(6A) CA; Telstra Corporation Ltd v Australasian Performing Right Association Ltd (1997) 191 CLR 140.

29

[2005] FCAFC 53.

30

University of New South Wales v Moorhouse (1975) 133 CLR 1.

31

APRA Jain (1990) 26 FCR 53; APRA v Metro on George Pty Ltd [2004] FCA 1123.

32

[1963]

33

s 101(1)-(A)

34

Larrikin Music Publishing v EMI Songs Australia [2010] FCA 29.

quoted in a press report justifies this reasonable presumption. CTU was required
to inspect the works before communicating them to the public.
(ii)

Criticism or Review Under s103A, the film TP by Raines, although


representing an infringed article may be presented at a museum for criticism or
review. Using De Garis v Neville Jeffress Pidler35 despite sufficient
acknowledgement to Raines work 36, the definitions of criticism and review are
not adequately fulfilled as per s10(1) CA. The notion of fairness37is also
debatable38.

35

(1990) 18 IPR 292.

36

s 103A, 103B(1)(a).

37

S103C(2)-(7)

38

Hubbard v Vosper [1972] 2 QB 84; Pro Siben Media AG v Carlton UK Television Ltd [1999] 1 WLR 605; Commonwealth v John Fairfax & Sons Ltd
[1980] HCA 44 & TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2002) 118 FCR 417.

2.1 Infringement of Cinematographic and Sculptural works: Palmer v Bauer (2012)

2.1.1 Infringement of Cinematographic Article


(i)

Nature of Copyright and Subsistence The minute long static shot of a


grandfather clock taken from The Hour39 is categorised as cinematographic
film40. Under s29(4)(a)(b) CA, Palmer is assumed to be the maker/owner41 of
copyright having published42 and exposed the article to the public. Under s86 CA
the nature of copyright for cinematographic films allows for the protection of
articles from copying and causing the film to be seen/ communicated in public.
Copyright would therefore subsist in the film The Hour in accordance with
s90(1)(2) through Palmers assumed qualified status as maker of a film
produced in Australia.

(ii)

Nature of Infringement From an objective43 perspective, causal connection


exists between Bauer and Palmers articles through the clear adoption of 60
seconds worth of material. The test set out for substantial part44 must be
answered in accordance with the clients representation as to how substantial the
60 excerpt was to the greater scheme of the film. From an objective
perspective45 it would appear that the presentation of the single static shot of
that grandfather clock for a predominant portion of the film would make it
qualitatively substantial for presence and depiction as a motif. This would invoke
infringement by doing acts comprised under copyright 46 as well exhibiting a
representation of the article by way of trade 47. This would have infringed

39

s 24 CA References to sounds and visual images embodied in an article: For the purposes of this Act, sounds or visual images shall be taken to have
been embodied in an article or thing if the article or thing has been so treated in relation to those sounds or visual images that those sounds or visual
images are capable, with or without the aid of some other device, of being reproduced from the article or thing.
40

s 10(1) CA Cinematographic film.

41

s 98(2) CA.

42

s 29(1)(b) CA.

43

by comparing the original work to the potentially infringing work and identifying the similarities from an ordinary persons perspective: Larrikin Music
Publishing Pty Ltd v EMI Songs Australia Pty lTd [2010] FCA 29; EMI Songs Australia Pty ltd v Larrikin Music Publishing [2011] FCAFC 47; Data Access
Corporation v Powerflex Services Pty Ltd [1999] HCA 49.
44

[2004] HCA 13; (2004) 218 CLR 273.

45

Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984; Infopaq International A/S v Danske Dagblades Forening
[2009] ECR 1-6569.
46

s 36 CA.

47

S38(1)

Palmers rights by reproducing the work in material form 48 and communicating


the work to the publiic49without authorisation50 or attribution51.
(iii) Defences Section 41 allows using subject matter other than works for fair
dealings and specifically those relating to critique/review. In accordance with De
Garis v Neville Jeffress Pidler52 Bauer could argue using Palmers excerpt as a
social critique.
2.1.2 Infringement of Artistic work: sculpture
(i)

Nature of Copyright Under s10(1) a sculpture is a cast or model. In Lucasfilm


Ltd v Ainsworth53 and Wham-O v Lincoln Industries54 a sculpture is anything
requires process of carving a hard material to produce designs or figures in
relief. The article must have some sort of intrinsic artistic/aesthetic value
regardless of whether they are also functional for other purposes 55. Palmers
clock is a three dimensional original56 model created 57by an artist for a
reasonable artistic purpose despite its obvious function of being a clock. As an
artistic work58 copyright would subsist59 in Palmer as a qualified person60/owner
and would prevent third parties to reproduce/public/communicate 61 the work in
public.

(ii)

Nature of Infringement Causal connection and substantial similarity are


manifested through the obvious reproduction/communication of the grandfather
clock. This act of reproduction would act as an infringement by doing acts
comprised under copyright 62. Further claim may be made under s38(1) by
exhibiting a representation of the article by way of trade. This would have

48
49

s31(b)(i)CA s 21 CA; Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964 1 WLR 273
s31(b)(iii)CA s 22(6)&(6)(A); Telstra Corporation Ltd v Australasian Performing Right Association Ltd (1997) 191 CLR 140.

50

s 13(2) CA (Generally) & s36(1)(1A).

51

s 193-195AB CA.

52

(199) 18 IPR 292.

53

[2009] EWCA Civ 1328.

54

[1985] RPC 127.

55

Greenfield Products Pty Ltd v Rover-Scott Bonnar Ltd (1990) 95 ALR 275 at 284.

56

S32(1)-(3); Sands & McDouggal Pty Ltd v Robinson (1917) 23 CLR 49.

57

S29 & s 35(2) CA: Publication/creation and Ownership of artistic work vesting with Palmer.

58

s 10(1)(a) CA: sculpture

59

s 32 CA.

60
61
62

s 32(2) CA.
s31(1)(b) s 21 CA.
s 36(a) CA.

infringed Palmers rights by reproducing the work in material form 63 and


communicating the work to the public64 with no authorisation65/attribution66.
(iii) Defences to infringement:

Indirect Infringement Using Francis Day & Hunter Ltd v


Bron67to argue lack of familiarity. Lack of originality 68 of
Palmers clock would also make it difficult to differentiate.

Sections 65 & 67 Could be incorporated if the sculpture was


filmed in a public place or was not so intrinsically linked to the
principal matters in the film.

Fair Dealing Criticism/Review or parody (s41&(A) CA): The


sculptures incorporation would thus seem a reasonable
appropriation69 in the context of the scenario. The critique could
come in the form of satirical representation of the concept of
time which was Bauers initial intention70.

63

s31(b)(i)CA s 21 CA; Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964 1 WLR 273

64

s31(b)(iii)CA s 22(6)&(6)(A); Telstra Corporation Ltd v Australasian Performing Right Association Ltd (1997) 191 CLR 140.

65

s 13(2) CA (Generally) & s36(1)(1A).

66

s 193-195AB CA.

67

[1963]

68

s 32(1)-(3) CA.

69

Pro Sieban Media AG v Carlton UK Television [1999] FSR 610.

70

Dr Seuss Enterprises v Penguin Books (1997) 109 F 3d 1394.

2.2 Infringement of Cinematographic Film: Drazen v Bauer (2012)

2.2.1 Nature of Copyright and Subsistence


Drazens visual article is a cinematographic film 71. Under s90(1)(2) the maker72 of the film
must be a qualified person. There no evidence to suggest Drazen is an Australian citizen
or whether the film was made in Australia. His classification as a Serbian film pioneer
would suggest he does not meet the requirements under s84(a). Despite this, Serbia is a
participant of the BERNE Convention which will make him a qualified person under s84(a).
Under these circumstances, copyright would subsist73 in the film and would allow the
owner74 (Drazen) to exercise his rights under s86.
2.2.2 Nature of Infringement
TP has directly copied a 43 second clip from Dresdens original work which is an offence 75
under s101(1) and specifically s86(a). Bauer could be found liable for causing the film to
be seen or communicated in public76. In order to validate these claims there must be a
causal connection and substantial part of the original film being copied 77. Causal
connection is made out because of the clear objective similarities between the original and
infringing texts which reveal exact duplication. The substantial criterion rests upon a
qualitative approach78 and whether the 43 second clip represents the most valuable and
pertinent part, an important ingredient of the film7980and/or was central to the rest of the
film.81 Facts are silent as to whether the scenario represents a central plot of the film it
would be illogical to assume that two characters meeting up to debate an issue would be
substantial enough to infringe copyright.

71

s 10(1) CA.

72

s 189: director, producer and/or screenwriter of the film

73

s 90 CA.

74
75
76

s 98 CA.
CBS Records v Telmark Teleproducts [1987] FCA
s 86(b)(c)

77

s14(1) CA: TCN Channel Nine v Network Ten [2001] FCA 108 (Panel 1); Network Ten v TCN Channel Nine[2004] HCA 13; (2004) 218 CLR 273.;
Larrikin Music Publishing v EMI Songs Australia[2010] FCA 29.
78

The Panel Case [No 2] 2005 FCA

79

The Panel Case [No 2] 2005 FCA, Salinger v Random House

80

The Panel Case [No 2] 2005 FCA, Los Angeles News Service v CBS Broadcasting Inc.

81

The Panel Case [No 2] 2005 FCA, Roy Expert Co Establishment of Vaduz Liechtenstein

2.3 Infringement of Work of Artistic Craftsmanship: Estate of Cheng Zhi (CZ)v


Bauer (2012)

2.3.1 Nature of Copyright


Under s10(1), CZs poster is an artistic work defined as a painting/drawing or work of
artistic craftsmanship. The 2D nature of the poster can be said to have a visual rather than
semiotic function82 and is in the form of a pattern, using shapes, colours and other
elements to give aesthetic pleasure, attract attention or convey a visual impression 83. A
work of artistic craftsmanship is classified through the creators 84 use of skill, knowledge
and/or workmanship85 and the articles objectively assumed aesthetic qualities of artistry 86.
The posters inclusion in Drazens work implies it was reproduced, published and made
available to the public87.
2.3.2 Nature of Infringement & Subsistence
Under s31(1)(b), CZ estate would be claiming the absolute right to reproduce the work
and/or communicate it to the public as well as the authors moral right of attribution. These
entitlements are alleged to have been breached by Bauers decision to include the poster
in the film and subsequently communicate88 it to the public. Under the US Free Trade
Act89, artistic works created prior to the acts commencement do not receive protection
apart from the natural 50 year right90. CZ died in 1952 and his claim to copyright would last
until 31st December 2002. This was a decade before Drazen included his work. Section 67
would permit the inclusion of an artistic work (poster) included incidentally within a film
without breaching copyright.

82

Miller & Lang, Limited v Polak [1908] 1 CH433 (Christmas cards considered a drawing).

83

Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197.

84

s 35(1)(2) CA.

85

Coogi Australia Pty ltd v Hysport International Pty Ltd FCA [1998]

86

Ibid.

87

s29(1)(a) CA.

88

s 194(2)(a)(d); communicating a work without attribution.

89
90

Free Trade Agreement Implementation Act 2004 (Cth)


Copyright Council Information Sheet G023v14 Table 1, Duration of Copyright, TB pg 188.

2.4 Infringement of Broadcast: Channel 24 v Bauer (2012)

2.4.1 Nature of Copyright and Subsistence


Under s10(1) a television broadcast is a communication to the public delivered by a
broadcasting service within the meaning of the BSA 91 which embodies a host of visual
images/sounds broadcast by way of television. Channel 24s exhibiting of Drazens film
falls under this definition. Channel 24s status as a free-to-air Australian network,
assumedly operating under a broadcasting licence, allows for copyright to vest in television
broadcasts within Australia92. Section 87(a)(b) bestows the broadcaster with rights to make
a cinematographic film, copy of the broadcast and to communicate the work to the public
in any medium.
2.4.2 Nature of Infringement
Bauer is alleged to have infringed copyright by reproducing a part of the film and
communicating it to the public via sales and loans to museums 93.TCN Channel Nine v
Network Ten94 rejected that any period of broadcasting, no matter how brief, is a
broadcast in which copyright subsists under s91 instead turning to the issue of
substantiveness under s14(1) as a means of identifying infringement. In this sense, it is
clear that the 43 second excerpt taken from Drazens clip objectively can not be found to
form a substantive part of the original work due to the fact that no evidence is provided to
suggest its role in the cinematographic portrayal. Channel 24 can not hold Bauer liable for
infringement

91

Broadcasting Services Act 1992 (Cth)

92

s 91 CA.

93

S101(1); s31(1)(b)(i)(ii)(iii)

94

[2001] FCA 108 (Panel 1).

2.5 Infringement of Musical Works: RCA Records/the Strokes v Bauer (2012)


2.5.1 Infringement of Musical Works
(i)

Nature of Copyright and Subsistence Under s31(1)(a), copyright in relation to


a musical work prevents third parties from publishing/adapting, communicating
and performing the work in public. Assuming that the work was
published95/communicated to the public in 200396, the presumed jointownership97 of copyright of the song would subsist98 in both parties as tenants in
common99.

(ii)

Nature of Infringement/ Rights Infringed Bauer directly copied a 10 second clip


from the Strokes musical work 12:51 with no authorisation100/attribution101
which represents causal connection criterion 102. Coffey v Warner/Chappell
Music103 explores the requisite substantial part (s14(1) CA) aspect by stating
that substantial part is quality of the work as a whole. The notion of cherry
picking104 will not suffice substantial part. Before substantial part can be
determined questions must be asked to the client as to what excerpt from the
song was chosen to include in his film TP. Looking at the facts, the Strokes
song was played at precisely 12:51:01 and, with no distinct chorus in the song, it
would be assumed that Bauer would include the stanza 12:51 is the time my
voice found the words I sought which would correspond with his work. In
accordance with CBS Record Australia v Gross105and Larrikin106 this would be
deemed a reproduction of the original works general hook not to mention its
melodic and vocal value. These acts infringement by doing acts comprised in
copyright107 and specifically those relating to infringing the authors rights to

95

s 29 CA.

96

s 22(2) CA.

97

s 35(2)&(4)(a) CA: If the author is the song writer, namely The Strokes or presuming the band was under a contract for services and engaged in
contractual negotiations to make their recording company (RCA Records) join-owners of the copyright then s35(3).
98

s 32(1)(a)(b) CA.

99

s 35(3) CA.

100

s 13(2) CA (Generally) & s36(1)(1A).

101

s 193-195AB CA.

102

Larrikin Music Publishing v EMI Songs Australia[2010] FCA 29.

103

[2005] EWHC 449 (Ch).

104

Ibid

105

(1989) 15 IPR 385.

106

Larrikin Music Publishing v EMI Songs Australia[2010] FCA 29.

107

s 36(1) CA.

reproduce the work108, publish the work109 and perform/communicate the work in
public110.
(iii) Defences to Infringement Fair dealing for purpose of parody or satire could
provide Bauer with an opportunity to escape liability 111. Bauer appropriated the
Strokes musical work from Masons youtube clip which may be argued to be a
parody112. Furthermore, his own appropriation of the clip may be seen as
complimenting his overriding purpose for making TP, that being to provide a
social critique on our obsession with time113.
2.5.2 Infringement of Literary Works or Sound Recording
It is clear that Bauer would in turn be found liable for infringing the literary value of the
Strokes song 12:51 by incorporating their lyrics into his film which would similarly be
found to hold causal connection and substantial similarity. Infringement would be analysed
in accordance with s31,32 & 36 CA. In addition to this, the work may also be considered a
sound recording114 as per the definition in s10(1). For this reason copyright would subsist 115
in the work and prevent others, apart from the owner 116, from infringing copyright by doing
acts comprised in copyright117. RCA would more specifically be looking to categorise
Bauers infringement as a sound recording of which they have greater rights to as opposed
to the musical value of the work.

108

s31(1)(a)(i) CA.

109

s 31(1)(a)(ii)

110

s31(1)(a)(iii)(iv) CA.

111

S41A CA.

112

Dr Seuss Enterprises, LP v Penguin Books USA, Inc (1997) 109 F 3d 1394.

113

Pro Sieban Media AG v Carlton UK Television [1999] FSR 610.

114

s 85(1) CA.

115

s 89(1) CA.

116

s 97(1) CA.

117

S101(1) CA.

2.6 Mason v Bauer (2012)

2.6.1 Nature of Copyright and Subsistence


Masons user generated video is an aggregate of visual images forming a moving picture.
Ownership118 of the film is said to vest in the maker119 who is Mason as sole
producer/director. Copyright would subsist in the film due to Mason being considered a
qualified person and his decision to produce the article in Australia 120. Mason would be
entitled to protect his rights under s86 and prevent third parties from copying his work and
communicating it in public.
2.6.2 Nature of Infringement
Bauer is alleged to have infringed Masons exclusive rights by doing acts otherwise not
permitted under copyright121 including breaches under s86(a)(b)(c). Bauer also infringed by
allowing the film to be traded commercially and exhibiting the article in public 122. In addition
to this, the authors natural right of attribution of authorship 123 and to not have authorship
falsely attributed124 have also been breached. Bauers film TP contained a 10 second
excerpt from Masons article which constituted a direct reproduction of images and
sounds125 and constitutes causal connection126. Bauers intentional copying of Masons
work must represent a substantial part of the film127 and go to the heart of the makers
work128. Masons user-generated video depicts a woman striding purposefully down a
streetlip synching to 12:51. It can be reasonably assumed from an objective perspective
that Bauers has copied a central foundation of the makers original expression.
2.6.3 Defences to Infringement

118

s 98(2) CA.

119

s 10(1) CA.

120

s 90(1)-(3) CA.

121

s 101(1) CA.

122

s 103 CA.

123

s 193 CA.

124

s 195AC CA.

125

CBS Records Australia Ltd v Telmark Teleproducts (Aust) Pty Ltd [1987] FCA

126

Larrikin Music Publishing v EMI Songs Australia[2010] FCA 29.

127

Copyright Act 1968 (Cth) s14(1), The panel decisions number one.

128

The Panel Case [No 2] 2005 FCA, Los Angeles News Service v CBS Broadcasting Inc.

Bauer could attempt to negate liability by invoking s103A or s103AA and classifying his
taking of the film as a fair act to criticise or parody129 Masons work. Bauer could argue his
work as a social critique on the notion of time.

129

Dr Seuss Enterprises, LP v Penguin Books USA, Inc (1997) 109 F 3d 1394.

2.7 Schaeffar v Bauer (2012)

2.7.1 Nature of Cause of Action


Under s10(1), the maker of a film upholds ownership of copyright and for this reason
Schaeffar cannot maintain an action for infringement because she is neither the writer,
producer and/or director130. Schaeffers claims are further diminished due to the fact that
her work cannot be considered original131. Differences resulting from mere
representations, particularly if those differences are done to suit the singers voice do not
constitute an original work. This is particularly crucial as Schaeffar lip-synched an existing
song. Can only claim performers moral rights.
2.7.2 Nature of Infringement
Under s189(1), a performer of a performance will be entitled to moral rights for the period
of the works copyright 132. Bauer incorporated Schaeffers performance into his
cinematographic work and would have a right of attribution 133 as he then communicated
her performance134 to the public135. The identification of the performer must be clear and
reasonably prominent136and the fact that Bauer was considered sole owner she may yet
have a claim under s195AHA for false attribution 137. Furthermore, considering Bauer
created the article as a social critique this could have diminished the integrity138 of her
performance139 if criticism or review was not Schaeffars intention for performing the work.
Schaeffars rights were also infringed by sale and other dealings 140 where Bauer sold
copies of his work to museums for financial remuneration.
2.7.3 Defences to Infringement

Under s189(1), Schaeffar participated in a performance in the


youtube clip which was represented as a performance consisting of
sound. Nonetheless, she can not be considered a performer as per

130

s 189 CA.

131

s32(1) CBS Records Australia ltd v Guy Gross [1989] FCA

132

s 195ANA CA.

133

s 195 ABA CA.

134

s 195AXA CA.

135

s 195ABB (2)(a)(b) CA.

136

s 195 ABD CA.

137

s 195AXB CA.

138

s 185 AXC CA.

139

s 185 AXC CA.

140

s 195 AXG.

the definition due to the fact that she did not contribute to the sound
as she was lip-synching.

Under s195AXD, no infringement of right of attribution of


performership will occur if it was reasonable not to identify the
performer. The fact that Mason merely mentioned his cousin in the
comment as opposed to making a clear and reasonably prominent
attribution in the credits would mean Bauer would not have to either.

Questions could also be asked as whether Schaeffar was a qualified


person as she was Canadian, not a resident but visiting /residing in
Australia. Under BERNE she is qualified.

2.8 Potential Breach of Rights: Almeida & Others v Bauer (2012)

2.8.1 Introduction
Almeida will attempt to highlight Bauers detrimental conduct in an attempt to solidify their
rights under s98141 and Part IX142 CA. In order to uphold their entitlements, Almeida must
provide evidence that they are joint owners or acting under a contract of service. Almeida
& Co are not author or maker143 and thus have no entitlement to ownership/copyright for
the film.
2.8.2 Joint Ownership
Under s22(4)(a)(b) the maker of a cinematographic film is the individual makes
arrangements necessary for the making of the film. This is reemphasised in s98(2)(3)
which protect the individual that made initial arrangements for the production of the film.
Whilst in certain circumstances substantial contributions to a work may accompany claims
to joint-authorship144, it is clear that original contributors who provided the significant
creative output145 from the onset should uphold complete ownership 146. Almeida were hired
to source clips for Bauer so that he could combine to form the article which represented
his own individualistic expression of the concept of time. Claimants provided minimal
creative input and objectively can not be identified as arranging any aspect of the
cinematographic film. No contract was created to establish joint authorship 147.
2.8.3 Contract of Service
Using Beloff v Pressdram148,it is clear that Almeidas work of sourcing clipsetc was
controlled by a higher authority, namely Bauer, and may be considered as work
produced in the course of that employment and therefore under a contract of service 149.
Whilst the control element was disputed in Redrock Holdings v Hinkley150, particularly in
141

S98 Copyright Act 1968 (Cth); Ownership of Copyright in cinematographic films.


S193 (Authors right to attribution), s195AF (Acts of false attribution of authorship for cinematographic films), s195AI (Authors right of integrity in
authorship).
143
S10(1) Copyright Act 1968 (Cth).
144
Milwell Pty Ltd v Olympic Amusements Pty Ltd [1999] FCA 63.
145
Seven Network v TCN Channel Nine [2005] FCAFC 144.
146
Brighton v Jones [2004] EWHC 1157 (Ch)
142

147

s98(3) CA.
[1973] 1 All ER 241.

148

149
150

s 98(5) CA.
[2001] VSC 91.

cases such as this were greater skill is required to perform such computer based editing
functions, it is clear that these employees had been integrated into the business151.
Evidence in the current scenario would suggest Almeida & Co were employed under a
contract of service: fixed salary, provided with equipment and programs to assist them in
sourcing the clips and would attend Bauers studio to fulfil their tasks.

151

Stevenson Jordan & Harrison Ltd v MacDonald & Evans [1988].