Professional designers in the building and construction industry have generally found comfort in the moral rights protections of the Copyright Act 1968 (Cth) (Act). On the other hand owners, developers and tenants have treated the scope and application of moral rights with caution when managing the risk of moral rights claims. Not surprisingly, the first moral rights decision to be handed down by an Australian court in Meskenas v ACP Publishing Pty Ltd  FMCA 1136, was an anticipated test of the Act.
In this decision artist, Vladas Meskenas, successfully sued the publisher of Woman's Day magazine for infringements of his right of attribution and rights not to have authorship falsely attributed. The infringements related to a photograph of Princess Mary next to a portrait which appeared in Woman's Day with a caption that read:
'She also visited the Victor Chang Cardiac Research Institute where she posed with the portrait of Dr Chang (below) by Jiawai Shen, who's painting the Princess for the National Gallery in Canberra'
The publisheradmitted that Mr Meskenas was the true author of the work and that it had unintentionally made a mistake by naming Jiawai Shen as the artist.
The court held that the defence of no infringement of attribution under section 195AR was unavailable in the circumstances of the infringement. Secondly, that unless there were quasi – penal ramifications in respect of a finding of an infringement of moral rights, intent is not required for false attribution.
Mr Meskenas was awarded nominal damages for the infringements and associated distress together with aggravated damages for the publisher's delay in publishing a correction and apology once it was notified of the infringement. The decision demonstrates that damages in respect of an infringement of attribution rights arises where no commercial detriment or loss of reputation is evident.
Whilst the scope and application of the Act in these circumstances has been determined following Meskenas v ACP Publishing Pty Ltd, the differing interests between professional designers and owners, developers and tenants in respect of derogatory treatment of the work is most significant to the building and construction industry and remains untested by the courts in this industry.
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