A PICTURE TELLS A THOUSAND DOLLARS

On 14 August 2006 the Federal Magistrates Court handed down Australia’s first decision concerning moral rights.

The Australian Financial Review identified the case’s significance in reporting that for the first time an Australian court has considered how much an artist's moral rights are worth.

What are moral rights?

Moral rights protect an author’s or creator’s right not to have their work subjected to derogatory treatment. “Derogatory treatment” means anything that results in the material distortion, destruction, mutilation or material alteration of the work in a way prejudicial to the author's honour or reputation.

A claim that an artist’s moral rights have been infringed can be defended if it is shown that the derogatory treatment made of the work was “reasonable” the circumstances. The Copyright Act identifies the factors to look at in determining what was “reasonable”; these include: the nature of the work, the use to which the work was put, and the manner and context in which the work is used.

Facts of the Case

The case concerned an artist, Mr Meskenas, who sued ACP for copyright infringement in respect of his portrait of the late Dr. Victor Chang when Woman’s Day published, without his licence or approval, a photograph of the Crown Princess of Denmark standing beside his portrait.

Meskenas also sought damages for the infringement of his moral rights resulting from the incorrect caption attached to the photograph and which incorrectly attributed the portrait to another artist.

Under the Copyright Act, an author is entitled to not just attribution, but also to not having authorship falsely attributed.

Meskenas additionally sought an apology from ACP for incorrect attribution, but when one was not forthcoming, he commenced proceedings. The publisher accepted that an apology was appropriate but as Raphael FM noted, "no apology was provided, notwithstanding that Eugene Meskenas made approximately 90 telephone calls in total to the magazine".

Breach of Moral Rights

The Court held that the claim for copyright infringement failed because the artist did not own the copyright which was owned by the estate of Dr Chang who commissioned Meskenas to paint the portrait as.

However, the artist was successful is his claim for infringement of his moral rights because ACP had no available defence.

The Court held that there was no “reasonable” reason why Mr Meskenas could not have been identified by ACP as the artist. 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 need one need only show it is “objectively incorrect” (ie the intention in the false attribution is irrelevant).

Award of Damages

Finding that a breach had occurred, the court looked to the remedies available and awarded $9,100 in damages, constituted by:

  • $1,100 for general damages for the wrongful attribution and distress caused to the artist, and
  • $8,000 for aggravated damages caused by ACP’s failure to apologise to the artist once put on notice of the infringement of the artist’s moral rights. In making this award his Honour expressly dismissed the applicant’s claim that it represented and form of “exemplary” or “special” damages because ACP’s actions were “flagrant”. 

However, and perhaps surprising to come, in explaining how it determined the sum awarded, the Court drew an analogy between the amount of damages for a breach of copyright and the amount of damages that would be award for infringement of moral rights.
On this key point the Court said:

“the primary damages for the infringement of moral rights in this case should reflect those which I would have awarded if I had believed that there was an infringement of the applicant’s copyright. I say this because there has been no commercial dealing with the right.”

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).

To add insult to injury, Federal Magistrate Raphael recently awarded costs against ACP in the sum of $10,000.
   
For Further Information Contact
 
Michael Napthali of Swaab Attorneys

T: +61 2 9233 5544 | E: mln@swaab.com.au