Should constructive trusts apply to copyright? Game Meats v Farm Transparency International heads to the High Court of Australia

Constructive trusts can be imposed to recognise a plaintiff’s interest in property owned by others. Courts in Australia and the UK (Attorney General v Guardian Newspapers and others (No 2) [1988] 3 All ER 545, 664) have hinted at the possibility of applying this remedy to copyright, but have not authoritatively determined the matter. This is set to change with the impending judgment of the High Court of Australia in a dispute between The Game Meats Co of Australia Pty Ltd and Farm Transparency International Ltd, in relation to the copyright in video footage of an abbatoir’s operations secretly obtained by animal activists.

This post explains the background of the Game Meats dispute, why it matters, and why courts should tread lightly when it comes to using this remedy over this particular type of property. 

The Game Meats dispute

The dispute arose out of the surreptitious installation of cameras in a GMC abbatoir by FTI. FTI sought to publish footage obtained from these cameras of the abbatoir’s operations in various outlets, and eventually did so online itself. As would be typical in cases like this, GMC sought an injunction against publication of the footage. Interestingly, however, GMC also sought a mandatory assignment of the copyright in that footage.

GMC grounded its claim in a suggestion by Gummow and Hayne JJ in ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, a case also dealing with footage of an abbatoir. Their Honours had suggested that footage illicitly obtained could lead to the recognition that the wrongdoer held the copyright for the plaintiff on constructive trust, which would then precede an order assigning the copyright to the plaintiff. In The Game Meats Company of Australia v Farm Transparency International Ltd [2024] FCA 1455, the trial judge, Snaden J, was unconvinced that this was the appropriate course of action, given the New South Wales Supreme Court had previously declined to do the same in yet another abbatoir-footage related case (Windridge Farm Pty Ltd v Grassi (2011) 254 FLR 87).

On appeal, the Full Federal Court displayed no such hesitation (The Game Meats Company of Australia Pty Ltd v Farm Transparency International Ltd [2025] FCAFC 104). Justice Jackman (Burley J agreeing) considered that it was open for the court to impose such a remedy, and that Snaden J was not justified in hesitating to do so. Justice Jackman considered that this was similar to other cases in which a constructive trust was imposed over property, like in cases of theft/fraud or mistakenly obtained property.

Justice Jackman also considered the fact that such cases engaged property that already existed – copyright comes into existence when a work is fixed in a material form, so could not have existed until the footage was recorded – to be no barrier to the application of a constructive trust. Justice Jackman concluded that this is exactly the type of case in which the possibility raised by Gummow and Hayne JJ in Lenah should be fulfilled (a copyright-protected work created in violation of the plaintiff’s rights). Accordingly, Snaden J had no reason to be so hesitant when clear precedential authority existed for applying this remedy in relation to copyright. Thus, the Full Federal Court granted a permanent injunction against the publication of the footage, and ordered that Farm Transparency delete all footage of GMC’s business, assign copyright in that footage to GMC, and pay $130,000.00 in damages.

Why this dispute matters

GMC was granted leave to appeal the matter to the High Court in December 2025. This appeal matters because it suggests there may be an alternative way to obtain ownership of copyright outside assignments from the owner (as regulated by copyright legislation). Whether the door should be so opened, and the degree to which it should be opened, are important questions; the answers the courts provide affect how we evaluate copyright law’s central bargain – providing exclusive rights to creators, that they alone (generally) can assign or license without fear of deprivation, so that they will create songs, music, books, movies and more for the public benefit. In this context, a number of reasons suggest the Full Federal Court’s reasoning should be rethought.  

Why the Full Court’s reasoning should be reconsidered

First, Gummow and Hayne JJ’s comments in Lenah were dicta, envisioning a potential remedial solution. This is some way removed from Jackman J’s approach to Lenah as a directive to be followed in similar cases.

Copyright law’s distinct features and aims also provide cause to tread carefully. While there may be moral similarities in the surreptitious procurement of footage and theft/fraud, focusing on those similarities neglects the bespoke nature of copyright. Copyright is personal property but is unlike other forms of personal, or even intangible, property. It is a creature of statute; it is necessarily limited in duration (for films and sound recordings, copyright lasts 70 years from publication); it only exists when an original work is reduced to material form; it is a negative bundle of rights – that is, it is the ability of the author to prevent others from reproducing, adapting, selling, and doing other things with a work; it is subject to numerous exceptions permitting dealing with works without consent, like fair use of material for criticism, review, parody and satire. Theft of money, on the other hand, is about property with few restrictions on its use and ownership in perpetuity.

Copyright’s aims also justify a cautious attitude towards the imposition of a constructive trust over it. We should ask whether the behaviour at issue justifies overriding copyright’s goals of promoting creativity and permitting the reasonable use of copyright-protected works by the public. Applying a constructive trust over copyright interferes with Parliament’s design for copyright, because copyright over creative works is generally granted to authors/owners no matter how morally objectionable the content or the circumstances of its creation. This moral agnosticism relinquishes remedial authority over the substance of works to other areas of law (constitutional law, human rights law), or indeed the market – as with any number of objectionable books or music. Imposing a moral qualifier on copyright subsistence attacks the heart of the enterprise, particularly where creative works are often vessels to challenge contemporary thoughts and attitudes. And allowing constructive trusts over copyright exacerbates the already serious problem of works being ‘locked away’ from the public, who might otherwise benefit from reproducing, and building off, that creativity. More generally, the application of constructive trusts over copyright risks turning copyright into a tool for restricting freedoms of expression and information. Doing so is inconsistent with copyright’s utilitarian (copyright incentivises creative production) and natural rights (copyright rewards creative labour) justifications.

Last, the existence of moral rights challenges the standard propertarian emphasis of the constructive trust – and therefore its suitability as a remedy over copyright. Moral rights are separate to the right to reproduce a work, adapt it, license it, etc (which are economic rights). They cannot be assigned or licensed, and are designed to reflect non-economic realities like the author’s link to their work. Even if a constructive trust were declared over the economic rights, and those rights were assigned to a plaintiff, that plaintiff may still have to contend with claims by the original creator that their moral rights were violated (for example, that non-publication of the footage prejudiced the honour of the filmmaker in circumstances where its existence was a matter of public interest and knowledge). Mohseni (2026) suggests moral rights might even come under the banner of a constructive trust, but no further detail is provided; and because moral rights are not proprietary, the dots between the trust and these rights are difficult to draw.

The nature, aims, and features of copyright law, allied to the adequacy of other remedies like injunctive relief and damages, all suggest the trial judge’s hesitation in this dispute was warranted. Copyright law is designed to fulfil particular goals and has particular features. Given Gummow and Hayne JJ only suggested a constructive trust was a possible remedy in cases of surreptitiously-obtained video footage, it is hoped that the High Court gives appropriate weight to these goals and aims in Game Meats before opening a door that may be difficult to close.

This blog post is based on analysis in Joshua Yuvaraj, ‘Justified Hesitation: Constructive Trusts Over Copyright in Australia after Game Meats v Farm Transparency International’ (2025) 44(3) University of Queensland Law Journal 127.

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