In 1989, Allen & Unwin published “Brothers in Arms: The Inside Story of Two Bikie Gangs”. A photograph of a young woman appeared in that book, and the person in the photograph was identified in the book as Leanne Walters. Ms Walters was a victim killed in the crossfire of a notorious shootout between two rival bikie gangs in 1984.
Ms Janette Francis commenced a claim for copyright and moral rights infringement in the Federal Court, claiming that the photograph in Brothers in Arms was a photograph that she took of herself at age 27 in a photobooth. Ms Francis commenced the claim against Allen & Unwin and the authors of the book. Ms Francis also brought the claim against Ms Walters’ parents (although as Justice Katzmann found, their involvement in the alleged copyright infringement was obscure).
The Respondents apparently accepted that, if the photograph is in fact of Ms Francis, then she owns the copyright in that photograph. However, the Respondents argued that the allegation that Ms Francis was depicted in the photograph was fanciful, implausible and improbable, and on that basis, applied for summary judgment, or alternatively, for an order striking out the substance of Ms Francis’ claim.
On 22 September, Justice Katzmann refused to strike out Ms Francis’ claim (Francis v Allen & Unwin  FCA 1027). Justice Katzmann found that there was a factual issue capable of being disputed which was in dispute, being whether or not Ms Francis was depicted in the photograph. Justice Katzman “cast a critical eye” over the Respondents’ evidence and found that they had not discharged their onus of proof.
Well, what evidence did the Respondents bring?
- The Respondents relied on solicitors’ affidavits, which demonstrated that Allen & Unwin is a reputable publisher and that Rex Walters (Ms Walters’ father) told the solicitor that he was certain the photograph was of his daughter and that he identified her signature.
- The Respondents tendered a first edition of Brothers in Arms, which included the image. The source of the image was stated to be the NSW Police Department. The book also contained inscriptions of gratitude from the authors to Mr Walters.
- The Supreme Court of South Australia had struck out similar case brought by Ms Francis because the statement of claim did not disclose a reasonable cause of action and was “vexatious”.
- The solicitor’s affidavit referred to a large number of “outlandish, highly extravagant and unfounded allegations” statements. This included a claim that Allen & Unwin, the NSW Government, Commonwealth Government, Liberal Party and Labor Party were engaged in a criminal partnership by using the photograph. The Respondents relied on these statements to argue that Ms Francis’ claim was ridiculous and that her application was frivolous, vexatious or an abuse of process.
- The Respondents also pointed to orders sought by Ms Francis in the South Australian proceeding, including that “objects of technological advancement hindering me and hurting me internally and externally, removed by qualified medical personnel not affiliated with any person involved with the 1984 murders”.
Justice Katzmann rejected the Respondents’ contentions, noting that the power to strike out a pleading or award summary judgment should not be exercised lightly. Her Honour noted that Ms Francis’ allegations were no bare assertion – there was some evidence in support (at [20). Ms Francis herself swore an affidavit stating that the photographs were of herself and annexed a handwritten statement from her former husband identifying the photograph. Ms Francis also annexed other photographs of Ms Walters that appeared to be a different woman to the photograph in the book. A letter from the NSW police denied that they were the source of the photograph in the book.
In contrast, Justice Katzmann found that “all the respondents offer is hearsay and innuendo” (at ). While Mr Walters could have put on an affidavit, as part of a solicitor’s affidavit, the statements by Mr Walters were hearsay. Her Honour noted that if the photograph was of Ms Walters, her father is best placed to identify the subject of the photograph. On the other hand, if the photograph was of Ms Francis, Ms Francis is best placed to identify the subject. While Ms Francis may have made “wild and outlandish statements”, questions of credibility are quintessentially unsuitable for summary resolution (at ).
Ultimately the lesson here for copyright cases is a procedural one – an allegation to strike out a pleading of copyright infringement, even if that pleading seems improbable, must be supported by sufficient evidence. The Respondents in this case ultimately offered no evidence of who took the photograph, which was the real issue in the proceeding (at ).