Australia’s first decision on the failure to attribute the author of an artistic work was handed down last year and offers some instructive lessons for agencies.
That decision held that the treatment by Woman’s Day, of a photograph of a painting was in breach of the artist’s moral rights. Moral rights protect an author’s right to be attributed as the author, unless it is reasonable to do so.
The Court held that there was no "reasonable" reason why the artist, Mr Meskenas, could not have been attributed as the artist by ACP. That Woman’s Day in fact both misidentified the photographer and had no policy in place to deal with such misidentification was telling against it.
The court rejected ACP’s contention that "intention" must be shown to found a claim for infringement of moral rights, stating that for a claim of "false" attribution to succeed one need only show it is "objectively incorrect" (i.e. the intention in the false attribution is irrelevant).
In this case, Woman’s Day could not prove their actions were reasonable, and so lost. The publisher compounded the problem by failing to apologise when the breach was pointed out. The case also shows it is irrelevant to claim you did not actually "intend" to breach an artist’s moral rights.
In assessing the damages, the Court determined the "value" of an infringement of moral rights is similar to awards made for infringement of copyright. In other words, where there is no commercial dealing, a breach of moral rights is worth at least the same as a breach of copyright. It is not clear whether this is a universal principle, or whether different considerations apply in assessing these damages where there has been a commercial dealing (which may lead to higher damages).
A key take-away message, however, is that a defence to a claim of infringement of moral rights will succeed only if it can be shown that the actions were "reasonable" in all the circumstances.
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