|
Moral rights put
to the test
Paul Gleeson, Partner
A recent Federal
Magistrates’ Court decision is the first judicial consideration of
Australia’s ‘moral rights’ legislation since its enactment in 2000.
Australia's
introduction of copyright law of “moral
rights” is relatively recent. They had long been recognised under European
law. Moral rights are:
-
the right of attribution of
authorship;
-
the right not to have
authorship falsely attributed; and
-
the right of integrity.
This is a right not to have a copyright work subjected
to “derogatory treatment”. This means doing anything to
the work that is prejudicial to the creator’s honour or
reputation.
Moral rights belong only to the
creators of copyright works, being authors and artists.
They last as long as the copyright (generally for the life
of the creator plus 70 years). They cannot be assigned
or waived, although creators can consent to specific acts
which might otherwise infringe their moral rights.
Moral rights finally received judicial scrutiny in
August, in the case of Meskenas v ACP Publishing Pty Ltd, a decision of the
Federal Magistrates’ Court.
Mr Vladas Meskenas is a renowned
portrait artist who was 89 years old at the time he brought
the action. The case involved a photograph of Princess Mary
of Denmark which was published in ‘Woman’s Day’ magazine
“special” souvenir bonus edition on 21 March 2005. The
photograph was of the Princess attending the Victor Chang
Cardiac Research Institute at St Vincent’s Hospital in
Sydney. Princess Mary was photographed in front of a
portrait of the late Dr Victor Chang which was painted by Mr
Meskenas shortly before Dr Chang’s death. There was a
caption at the foot of the photograph which described the
painting and attributed it to the wrong artist. Mr Meskenas
was greatly distressed because the painting had a particular
emotional importance to him, and its authorship had been
wrongly attributed to a rival. Woman’s Day agreed to
publish a correction, but neglected to do so until 26 June
2006, some 15 months after the original publication, and
after approximately 90 telephone calls to the magazine on Mr
Meskenas’ behalf.
The magistrate had little
trouble in determining that the moral rights of Mr Meskenas
had been infringed by the magazine having falsely attributed
authorship to another person. This was even though the
magazine had evidence that it had not intentionally made the
mistake.
The magistrate awarded Mr
Meskenas $9,100 damages. In coming to this award, the
magistrate determined that even though there was no economic
loss incurred by Mr Meskenas as a result of the false
publication, his feelings had been genuinely aggrieved and
the conduct of the magazine in failing to publish the
correction for over a year after it had agreed to do so,
entitled Mr Meskenas to “aggravated” damages for breach of
his moral rights.
Although the award of damages
in this case was relatively modest, there are a number of
lessons for any organisation that wishes to publish or
otherwise use copyright material:
-
Ensure that authors are
correctly attributed wherever possible.
-
Don’t underestimate the
ability of courts to award damages, even where there is
no economic loss to the author. The author’s reputation
does have an intrinsic value, and courts will defend
that value.
-
If a mistake has been made,
take immediate action to correct it in consultation with
the offended party and keep the offended party informed
of progress.
For further information
please contact Paul on +61 3 9609 1692 or email
pgleeson@rk.com.au.
TOP OF PAGE |
