Australia: Copyright and moral rights:Take it personally

Intellectual Property
Last Updated: 2 October 2013
Article by Shehana Wijesena and Rebecca N. Currey

Since moral rights were introduced by amendments to the Copyright Act 1968 (Cth) in 2000, there have been only a handful of decisions which have considered their application. However, two recent decisions highlight that it is important for users of copyright material to be aware of moral rights and the potential ramifications of infringing these rights.

These decisions demonstrate that parties using materials protected by copyright must be aware of the moral rights of the creators of such materials. In particular, it is important to keep in mind that the copyright owner and creator may not be the same person.

Notably, as these cases demonstrate, infringement of a person's moral rights can be a costly exercise, sounding in legal proceedings and damages awards.

What are Moral Rights?

Moral rights are personal, non-economic rights belonging to creators of materials protected by copyright.

Under the Copyright Act 1968 (Cth) an author has three moral rights:

  • the right to be identified as the author of their work (the right of attribution)
  • the right not to have a person falsely assert or imply that they are the author of a work (the right not to have authorship falsely attributed)
  • the right not to have their work subjected to derogatory treatment which is prejudicial to their honour or reputation (the right of integrity of authorship).

Moral rights cannot be assigned or waived. It is also important to keep in mind that moral rights vest in the creator of the copyright work, which may not always be the copyright owner. For example, while an employer may own the copyright in the work their employees create as part of their employment, because the employees are the authors, they will have moral rights in relation to these works.

Fernandez v Perez [2012] NSWSC 1242

This case involved the musician Perez, better known as "Pitbull". Perez had provided an audio sample to Fernandez, a DJ and promoter, to promote Perez's upcoming Australian concert tour on radio. In the audio sample, which lasted approximately 10 seconds, Perez made reference to himself, and to Fernandez. The tour was subsequently cancelled.

Following the tour's cancellation, Fernandez replaced the lyrics at the beginning of a Perez song (the Bon, Bon song) with the audio sample. The modified song was available on Fernandez's website. It was also played by Fernandez in nightclubs where he performed as a DJ.

Perez claimed that Fernandez's alteration of the song amounted to infringement of his right of integrity not to have his work subjected to derogatory treatment (in addition to infringement of his rights of reproduction and communication to the public).

For the purposes of the Copyright Act 1968 (Cth), "derogatory treatment" means doing anything in relation to a work that results in a material distortion, mutilation or alteration (or anything else) of the work that is prejudicial to the author's honour or reputation.

The Audio Sample in the Bon, Bon Song

The Court found that by skillfully deleting a prominent part of the Bon, Bon song and replacing it with the audio sample, Fernandez had created an impression that Perez himself had included the altered content in the song. The change was, therefore, a material distortion or alteration of the work which infringed Perez's right of integrity of authorship.

The Court found that what Fernandez had done was "prejudicial" to Perez's reputation because:

  • there would have been a class of listener who would have presumed that the unauthorised alteration formed part of the original work making Fernandez a subject of the song, and that Perez had written and performed it about him
  • some listeners would be aware of the cancelled tour and court case, and that Fernandez was using the altered song as "an act of retribution", and would understand these alterations to the song were to mock Perez's reputation.

Federal Magistrate Driver accepted evidence that recording artists in the hip-hop/rap genre "go to great lengths to control whom they associate with and these associations form a central part of their reputation". Federal Magistrate Driver was satisfied that "the association with Fernandez is one which Perez himself strongly considered to be prejudicial to his reputation, and which caused him anger and distress" and awarded Perez AUD10,000 in damages for breach of his moral right not to have his work subjected to derogatory treatment.

Corby v Allen & Unwin Pty Limited [2013] FCA 370

The applicants in this case were members of Schapelle Corby's family. They brought proceedings against book publisher Allen & Unwin who had published the book Sins of the Father, by Eamonn Duff (Literary Work).

The applicants claimed they owned the copyright in five photographs appearing in the Literary Work. The applicants argued that the family members that took the photographs did not authorise the reproduction of the photographs in the Literary Work, and that no permission was sought in relation to their reproduction.

The applicants' argument was successful and the Court awarded each of the various family members between AUD2000 and AUD5000 each in damages for infringement of their copyright. The Court also awarded AUD45,000 to the applicants in additional damages for infringement.

In addition to claiming copyright infringement, the applicants argued that, because the name of the photographer was not published alongside each of the photographs, their statutory right of attribution was infringed. The publishers in turn argued that it was reasonable not to attribute authorship of any of the photographs, because it was not industry practice to do so. The publishers were not successful in this argument and a finding was made that the moral rights of the photographers were infringed.

The Court held that:

  • it would not have been difficult or expensive for the publishers to make any enquiries as to the authorship of the photographs
  • given that some photographs in the Literary Work were attributed, this refuted the argument that it was industry practice not to attribute the photographs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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