Moral dilemmas

The Federal Magistrates' Court of Australia recently handed down a landmark decision on the moral rights of copyright authors, awarding damages to an artist whose portrait of a heart surgeon was incorrectly attributed to a third party in the respondent's publication Woman's Day. A result that could have wide ranging implications for fashion businesses, writes Tony Watson.

Under the Copyright Act 1968 (Cth) (the Act), the author of a copyright work has three moral rights: The right of attribution of authorship in the work, The right not to have the authorship falsely attributed; and The right of integrity of authorship and not have the work subjected to derogatory treatment.

These rights, which were introduced into the Act in 2000, are non-transferable and remain with the author regardless of whether the author retains, or ever held, copyright ownership in their work.

In this case the artist was commissioned to paint a portrait of the heart surgeon in exchange for Dr Victor Chang performing heart surgery on the artist. The painting now hangs at the Victor Chang Cardiac Research Institute. In 2005, Woman's Day published a photograph of Princess Mary of Denmark visiting the institute, posing alongside the artist's portrait. Rather than naming the artist, the caption falsely identified the author of the work as being "Jiawei Shen".

Despite the artist and his son bringing the error the attention of the magazine and repeatedly seeking a published correction and apology, Woman's Day failed to rectify its mistake and no correction or apology was published.
The artist subsequently issued proceedings for copyright infringement and infringement of his moral rights. The court held the magazine had infringed the author's moral rights and awarded the artist the sum of $9,100 in damages. 

The Court held the primary damages awarded for the infringement of moral rights should reflect those the court would have awarded if it believed that there was an infringement of copyright, seemingly leaving the way open for substantial damages awards for moral rights infringements in the future.

The Court also held that "false attribution", as defined in the moral rights provisions in Part IX of the Act, does not require any intention on the part of the infringer but merely that the attribution is objectively incorrect.

This decision shows courts are willing to enforce the moral rights provisions of the Act and that infringers who are on notice of their infringement yet show a disregard for authors' moral rights will be treated harshly.

The case demonstrates the need to keep moral rights in mind in the course of conducting business, particularly where your business is involved in the commission of works created by, for example, fashion designers or graphic designers.  These issues are equally relevant where employees of your business create the works as, whilst the employer will own the copyright in works created by employees in the course of their employment, the employees as authors of such works will retain moral rights. Accordingly, if your business contracts or employs people to design garments, patterns, graphic works to be applied to garments (or other items) or designs for fabric prints then these moral rights issues are relevant to you.

It is clearly preferable to deal with such issues contractually at the outset as, whilst moral rights are non-transferable, they may be waived by agreement.  If moral rights have not been waived, then, if a work such as a garment is falsely attributed to a person other than the designer, the designer of that garment may have an action for infringement of the moral right not to have the authorship falsely attributed. Furthermore, even if the garment were not falsely attributed but the designer was not identified, then it is possible the author could have an action for infringement of the moral right of attribution of authorship in the work. 

If your company has provided the false information to the magazine, or failed to identify the designer, then the action for infringement could be brought against you.  The publication may also be liable.

It is therefore important to ensure that a well drafted clause dealing with moral rights is included in all agreements with employees or contractors who may be involved in creating works for your business.  Dealing with these matters properly at the outset will avoid moral rights issues arising in the future, and could ultimately save your business a significant amount of time and money later.

Tony Watson is a partner at Middletons and the head of the firm's Innovations Group. He specialises in intellectual property matters and has extensive experience assisting clients in the fashion industry with a particular expertise in the registration of trade marks and designs, enforcement of registered and unregistered rights including trade marks, designs, patents and copyright and anti-counterfeiting.

By Tony Watson