In December 2000 the Australian Federal Government decided to hack away at a Cold War-era law. The Copyright Amendment (Moral Rights) Act 2000 came into effect – Australia’s delayed response to its obligations to comply with Article 6bis Berne Convention. This formally codified the regime and extended the moral rights into three separate rights within the Copyright Act 1968 being:

– The author’s right to be attributed as the author when certain ‘attributable acts’ are done in relation to the protected subject matter (Section 193);

– The author’s right not to have authorship falsely attributed in the case of the attributable acts (S 195 AC0); and

– The author’s right not have the protected subject-matter subjected to “derogatory treatment” (the “right of integrity of authorship” – Section 195AI).

Remedies, provided by section 195AZA of the Copyright Act, include injunctive relief, damages, declaratory relief, orders for a public apology, and orders that false attribution or derogatory treatment be removed or reversed.

The nomenclature of the sections should be a giveaway that this was another swing of the machete at the then- 32 year old (now 51 year old) Copyright Act. A better metaphor is that it is a legislative patchwork map difficult to navigate by even for intellectual property lawyers, let alone non-lawyers involved in the creative rights industries.

In the Second Reading Speech to the introduction of the bill amending the Copyright Act (the third such effort, as a consequence of the creative industries’ interest in the legislation), the Commonwealth Attorney-General Darryl Williams stated the objectives of the legislation were to provide comprehensive implementation of Australia’s international obligations in order to overcome the “fragmentary and incomplete” approach taken to date.

For the sake of completeness, prior to the enactment of the moral rights regime, in 1997 the Full Court of the Federal Court of Australia in Schott Musik International GMBH & Co v Colossal Records of Australia Pty Ltd & Ors [1997] FCA 531 (19 June 1997) took a look at the meaning of “debase” in section 55(2) of the Copyright Act. The dispute related to a techno version of a 1936 chorus called “O Fortuna”. (As the Full Court noted in what might be a 90s flashback for some of our readers, “The remixed tracks adopt the style of what is referred to as “techno music”, particularly favoured at all night dance sessions (“raves”) where loud, pulsating music is played.”) The Full Court went on to say,

Section 55(2) gives no direct right in the author of the work, if not the copyright owner, to claim a debasement. Particularly, it must be borne in mind that Australia did not enact moral rights protection along the lines of Article 6 bis of the 1948 Brussels Act of the Berne Convention, so as to afford to an author protection of his or her honour or reputation. Any suggestion that s 55(2) is a back door attempt at extending moral rights protection is not supported by the legislative history.”

And so the Copyright Amendment (Moral Rights) Act 2000 was an effort at playing catch-up.

What is remarkable is that after 19 years there is sparse case law in Australia arising from the introduction of the moral rights regime. Here is a survey of the decisions:

1. Adams v Quasar Management Services Pty Ltd & Ors [2002] QSC 223 (13 August 2002)

This was a decision concerning the authorship of a document called the Australian Domestic Construction Manual. During the course of the proceedings very belatedly the plaintiff added a claim for infringement of moral rights. The Court noted at [128], “Counsel submitted that the joint venturers’ omission to attribute original authorship to the plaintiff … was reasonable given the joint venturers’ belief that they had copyright in the work and their payment to have the work adapted by others. Counsel also emphasised that the defendants had not been shown to have profited from the work and the fact that the non-acknowledgment was in the nature of an oversight. It was also said that the defendants acted reasonably having regard to the nature of the work involved, being a compilation, the fact that the Australianised (Queensland) version of the ADCM was adapted to form the New South Wales and Victorian editions as contemplated by the parties. Alternatively, reliance was placed on these matters as relevant to the granting of remedies under s 195AZA of the Act.”

But the Court refused to apply the moral rights regime, because of the offending conduct had occurred prior to 21 December 2000, the date the Copyright Amendment (Moral Rights) Act 2000 came into force.

2. Meskanas v ACP Publishing Pty Ltd (2006) 70 IPR 172

The first moral rights case decided in the Australian jurisdiction came four years later, in the form of the Federal Magistrates Court’s decision of Meskanas v ACP Publishing Pty Ltd (2006) 70 IPR 172. The case involved a well-known and respected artist, Mr Vladas Meskenas and his portrait of the famous heart surgeon Dr Victor Chang. At the time of the action the portrait was hanging in the Victor Chang Cardiac Research Institute in Sydney. This is a prominent venue which Princess Mary of Denmark visited during her visit to Sydney in 2006. Media coverage of the visit was at high levels, and a photograph was taken of the Princess and the Premier of New South Wales in front of the painting.

The photograph was ultimately published in the magazine Woman’s Day which at the time had a distribution of nearly 2 million copies. The infringement of moral rights occurred when the magazine included a caption which falsely attributed creation of the portrait to “Jiawei Shen” rather than to Mr Meskanas.

This lead to a prolonged correspondence with Woman’s Day ultimately failing to publicly apologise to Mr Meskanas. Only just prior to the case being heard at trial did the publisher finally acquiesce to this request and publish a written correction. By this point however, the Court was of the view that damage was done. The moral rights cause of action was brought under Section 195AO of the Copyright Act claiming a breach of the right of attribution, and damages. Interestingly, this cause of action was only raised a few weeks prior to the hearing, as a separate cause of action for infringement of copyright was the initial cause of action. The copyright infringement grounds were disposed of by the Court, and so the plaintiff’s chances hinged on the moral rights breach.

The Court ultimately found that both the right of attribution and the right against false attribution had been infringed, and damages of $1100 total were imposed along with aggravated compensatory damages.

3. Ogawa v Spender [2006] FCAFC 68

In the unusual 2006 Full Federal Court decision of Ogawa v Spender [2006] FCAFC 68, the appellant argued unsuccessfully that the reproduction of her emails by a judge of the Supreme Court of Queensland in the context of a judgment was a breach of her moral rights. The respondent judge in that case was held entitled to rely on the common law principle of judicial immunity, and the claim was unsuccessful.

4. Fernandez v Perez [2012] NSWSC 1242

Six years later was the decision of Fernandez v Perez [2012] NSWSC 1242. The case involved the musician artist “Pitbull” who provided an audio sample to Mr Fernandez (a DJ and promoter) for the purposes of promoting Pitbull’s upcoming concert tour on radio. The audio sample featured both of the parties’ names. However, this tour was subsequently cancelled. Following the cancellation, Mr Fernandez replaced the lyrics at the beginning of a Pitbull song with the audio sample, and the finalised song was then made available on Fernandez’s website, and subsequently played in nightclubs.

Mr Perez made a claim that Mr Fernandez’ alteration amounted to the infringement of his right of integrity not have his work subjected to derogatory treatment, and in addition to his copyright infringement rights of reproduction and communication to the public. ‘Derogatory’ treatment within the legislation means doing anything in relation to the work which results in a “material distortion, mutilation or alteration (or anything else) of the work that is prejudicial to the author’s honour or reputation.”

In this instance the Court found that Mr Fernandez’s actions in altering the song was prejudicial to Mr Perez’s reputation by reason of the fact that:

– there would be a class of listeners who would have presumed the altered version of the song formed part of the original work, making the reference to Mr Fernandez within it a subject of the song when this was not the case; and

– some listeners would be aware of the cancelled tour and subsequent litigation, and would assume that Mr Fernandez was using the altered version of the song in order to mock and criticise Mr Perez’s reputation.

The court noted that artists “go to great lengths to control whom they associate with and these associations form a central part of their reputation”. To that end, Mr Perez was awarded $10,000 for the breach of his moral right of protection from the work being subjected to derogatory treatment.

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

The family of convicted drug courier Schapelle Corby were the applicants in a cause of action taken against publisher Allen & Unwin, which had published a book called “Sins of the Father” written by Eamonn Duff. The Corby family claimed copyright in five photographs which appeared in the book, and argued that the photographs were taken by members of the family who did not authorise their reproduction in the book, and that no permission was sought to reproduce them.

In additional to the copyright infringement claim, the Corbys argued that their moral right of attribution had been breached as the name of the photographer was not published alongside each of the photographs. The publishers made the argument this was reasonable owing to the fact that it was industry practice not to do so. The Court did not accept that defence, and the moral rights of the applicants were found to have been infringed.

In particular, the Court held that it would not have been difficult or expensive for the publishers to make enquiries as to the authorship of the photographs particularly given some of photographs in the book were attributed to their author.

6. Tyler v Sevin [2014] FCCA 445

Tyler v Sevin was a Federal Court case in which an American photographer, Mr Khoury Tyler, alleged the Ms Sevin infringed his copyright in failing to pay a licence fee for use of a stock photo sourced from his online photo library. Ms Sevin ran an online travel agency out of Melbourne, and used one of the stock photos on her website’s promotion page.

Ms Sevin was uncooperative in the lead-up to the commencement of litigation. The Court found in Mr Tyler’s favour, finding that Ms Sevin had infringed Mr Tyler’s moral right to attribution in breach of Section 195AO of the Copyright Act. The Court awarded damages of USD 1850 and additional damages of USD12,500 with costs.

7. Monte v Fairfax Media Publications Pty Ltd [2015] FCCA 1633

The Federal Circuit Court Decision of Monte v Fairfax Media also involved the infringement of copyright and moral rights in a photograph. The offending photograph was published on 14 July 2013 by the Sun Herald in an article about Mr Monte and under the heading “Alarm as Monte’s back on the case”. The article was not flattering to Mr Monte, describing him as “liar, cheat and unlicensed private photographer…” Included in the article was a photograph of Mr Monte’s partner taken by Mr Monte. Surprisingly, Mr Monte’s action did not like in defamation, but instead in copyright infringement. Fairfax did not dispute the subsistence of copyright in the photograph, but rather the damages awarded in respect of such.

For the purposes of the moral rights breach, Mr Monte provided evidence the Fairfax’s publication had made him “angry and upset ” and consistently with that evidence it should follow that he would not want to have been connected with the publication of the Photograph. However drawing upon the decision in Corby, the Court found that there is “a distinction between hurt or embarrassment to the applicant’s status as a photographer, and hurt or embarrassment suffered as a family member”. The court found no moral rights infringement.

Again for the sake of completeness, we also include Vass v Nationwide News Pty Ltd [2016] NSWSC 1721. This was a defamation case in which an article was published in the Sunday Telegraph newspaper entitled ‘Painter has Art Attack After Buyer ‘ruins’ Work”. The article contained allegations that the purchaser of a five-panel work by artist Del Kathryn Barton had split the work by selling one of the panels. The art collector Mr Vass claimed the article contained defamatory imputations that he had damaged the work and infringed the artist’s moral rights: one imputation considered by the court was that “The plaintiff infringed the moral rights of the creator of an important Australian contemporary work of art.” Despite the moral rights concepts, the allegation was grounded in the pleadings in the context of the law of defamation.

A fascinating newsletter published by the Australian Government Solicitor in January 2008, containing an article entitled “The Moral of the Story: Moral Rights in Australia over Seven Years” by Rachel Chua, catalogues three near misses which caught the attention of the press:

National Gallery of Australia The proposed renovations to the National Gallery of Australia gave rise to the first major controversy back in June 2001 when Col Madigan, the principal architect of the Gallery, became aware of plans to add a multi-storey glass enclosure to the front entrance of the building and to make other changes. Madigan strongly objected to the changes proposed and the Gallery undertook the notification and consultation process for buildings in order to avoid moral rights infringement. However, despite there being no legal requirement to do so, the Gallery continued its discussions with Madigan in an effort to reach a mutually acceptable position. Renovations to the Gallery commenced last year.

The Garden of Australian Dreams

In 2003, the Carroll Report on the National Museum of Australia sparked controversy when it recommended that alterations be made to the Museum’s Garden of Australian Dreams. The Garden is described by the Museum as a ‘symbolic landscape’. It features a montage of images and concepts such as the dingo fence, explorer’s tracks, a map of the linguistic boundaries of Indigenous Australia and the word ‘home’ repeated in 100 different languages. The Carroll Report’s proposal to add lawn, trees, reproductions of Aboriginal rock art and a sundial to the Garden led to threats by landscape architect Richard Weller to take action against infringement of his moral rights. Weller considered that the changes proposed were ‘offensive to [his] artistic integrity’ and ‘[made] a complete mockery of the entire process by which the [Garden] was chosen and created’. The proposed changes never proceeded.

Pig ‘n’ Whistle pub

In a similar vein, the well-known architect Harry Seidler took legal action in 2003 in relation to changes made to the premises of the Pig ‘n’ Whistle pub located at Seidler’s Riverside Centre in Brisbane. The owner of the pub had installed a glass fence and canopy to protect customers from the wind. He also included signage featuring a trumpet-playing pig in neon lights. Seidler considered the changes offensive to the building’s geometry and the signage ‘vulgar’ and claimed infringement of his moral rights. The matter was settled on a confidential basis but apparently required an acknowledgment that Seidler was not involved in the design of the pub.

Back in 1999, Attorney-General Williams said, “More importantly, [the introduction of the moral rights regime] is about acknowledging the great importance of respect for the integrity of creative endeavour. At its most basic, this bill is a recognition of the importance to Australian culture of literary, artistic, musical and dramatic works and of those who create them.” The legislation however does not expressly exclude the works of those who, for want of a better term, are not ordinarily regarded as “artistes”: for example, graphic designers, web designers, video game designers, architects, and drafts people. The moral rights regime captures the activities of those engaged in commercial activities which inherently involve change and amendment. Given this significant bear pit, is a cause of wonder that we have not seen more moral rights decisions in Australia. Perhaps, buried as it is in the long-creaking Copyright Act, its existence simply does not occur to many practitioners.