Australian Olympic Committee Inc v Big Fights Inc [1999] FCA 1042

FEDERAL COURT OF AUSTRALIA AUSTRALIAN OLYMPIC COMMITTEE INC v THE BIG FIGHTS INC [1999] FCA 1042 NG 41 of 1997 NG 481 of 1998 SUMMARY Introduction In accordance with the practice of the Federal Court in certain cases of public interest, I have prepared a brief summary to accompany the reasons for judgment that are being delivered today. But the only authoritative pronouncement of my reasons is that contained in the full reasons for judgment. This summary is necessarily incomplete. Summary of Judgment Between 22 November and 8 December 1956, the sixteenth modern Olympic Games were held in Melbourne. The main issue in this case is the present ownership of the copyright in certain films of those Games. There is also a dispute over the present ownership of certain copies of those films which are being held in safe storage pending this decision. In both respects, I decide that the Australian Olympic Committee, or the AOC, succeeds. The case has involved facts extending over some forty years and many complex issues – too many to relate here. What follows is a summary of some of the issues and my conclusions on them. In 1956, the Australian Olympic Federation, or AOF, was the National Olympic Committee for Australia, recognised by the International Olympic Committee, or IOC. Organisation of the Games was entrusted to a company formed for the purpose called the "Organising Committee for the Games of the XVIth Olympiad Melbourne 1956", known as "OCOG". OCOG established an "Official Film Unit" and appointed Reginald Peter Whitchurch, known as Peter Whitchurch, as its director. Cameramen in the Official Film Unit shot a large quantity of footage during the Games. The rules of the IOC required that certain edited films of the Games be produced. OCOG engaged Peter Whitchurch to produce those edited films from the unedited ones. This case has concerned the unedited films shot by the Official Film Unit, the edited films subsequently produced by Peter Whitchurch, and certain newsreel type films which OCOG permitted two private companies to produce, using their own cameramen. In 1960, OCOG granted certain rights in respect of the edited films to Peter Whitchurch in return for payment by him of Ł100. This was done, not by way of a professionally prepared legal document, but by an exchange of letters between OCOG and Peter Whitchurch. The letters have given rise to this question in the case: Did OCOG assign the copyright in the edited films to Peter Whitchurch or did it give him only a non-exclusive right to reprint and sell copies of them? The main protagonists in these proceedings are the AOC on the one hand, and The Big Fights Incorporated on the other. The AOC is the successor to the AOF. The business of The Big Fights was the building up and commercial exploitation of extensive libraries of films of sporting events, in particular, boxing films and films of Olympic Games. Part of its business involved the licensing of others, such as television broadcasters, to use its films. The AOC is supported in the proceedings by Mr John Whitchurch, the son of the late Peter Whitchurch. The Big Fights is supported by Mrs Lynette Benson and Mrs Diane Talbot, daughters of the late Peter Whitchurch and sisters of John. The Big Fights is also supported by ESPN Enterprises Inc which purchased The Big Fights' film libraries, including its Olympic Library, after the proceedings began. The AOC claims that OCOG originally owned the copyright in all the films as well as the copies of them that are in storage, and that in one of two possible ways, the AOC is now the owner. One way is this. Following the dissolution of OCOG on 30 April 1974, OCOG's remaining assets passed under companies legislation, eventually to the Australian Securities Commission, or the ASC. On 20 October 1997 the ASC executed a deed assigning to the AOC all the interest in the films and the copyright in them which OCOG had upon its dissolution in 1974. The Big Fights, on the other hand, claims that in one of various possible ways it is now the owner of the copyright in the edited films and of the copies of them in storage. It claims either that Peter Whitchurch was the original owner of the edited films and of the copyright in them once he completed his editing work, or that OCOG assigned both to him in 1960. Alternatively, The Big Fights claims that the AOC is now prevented from asserting that it owns the films and the copyright, because Peter Whitchurch, a company established by him and his wife, and his three children, dealt with the films for many years as though they owned the copyright in them, without protest by the AOF or the AOC. It is true that it was not until 1996, some forty years after the Games, that the AOC became active in asserting its rights. Mr Coates, the President of the AOC, gave evidence in relation to the delay. The Big Fights claims that the films and the copyright were sold to it by Peter Whitchurch's company. At the time, Mrs Benson and Mrs Talbot constituted a majority of the board of directors, and Mr John Whitchurch, a minority. In substance, the sale was effected by the majority. I will now summarise my conclusions: · OCOG was the owner of the copyright in the films as well as the copies of those films now held in storage; · OCOG did not assign to Peter Whitchurch the copyright in the edited films, nor did it sell to him the copies of the edited films now held in storage; · in 1960, OCOG granted to Peter Whitchurch, for the duration of the copyright, a non-exclusive right to reprint and sell copies of the edited films, and, for that purpose, the right to possess the copies of the edited films now held in storage; · OCOG's copyright in the films and the copies of the films now held in storage are transferred to the AOC pursuant to a deed between the AOC and the ASC dated 20 October 1997; · the AOC therefore now owns the copyright in the films as well as the copies held in storage; · the AOC is not prevented from asserting its copyright or its ownership of the copies; · the AOC is not, however, entitled to terminate the 1960 contract between OCOG and Peter Whitchurch; · the rights of reprinting and selling the edited films granted by OCOG to Peter Whitchurch passed through his estate and that of his wife to their three children in equal shares; · Mr John Whitchurch has transferred his one third interest in those rights to the AOC; · Mr Whitchurch and Mrs Benson, who were the executors of the will of Mrs Whitchurch, now hold those rights on trust for Mrs Benson, Mrs Talbot and the AOC in three equal shares; · the AOC has not at this stage shown that any of the respondents have infringed its copyright or are threatening to do so. I will now proceed to make the formal orders of the Court. LINDGREN J 3 AUGUST 1999