Erin Mackay completed a student placement program through the University of New South Wales at Arts Law in the Spring semester of 2006.
In August 2006, the Federal Magistrates Court decided the outcome of the first moral rights case since the Commonwealth Government introduced legislation protecting moral rights six years ago.
This first judicial discussion of the moral rights of attribution and against false attribution and relevant defences is interesting for a number of reasons, not least the Federal Magistrate’s treatment of infringement of moral rights, long considered a “secondary” right, as commensurate to infringement of copyright in the assessment of damages.
What are moral rights?
The Copyright Act 1968 (Cth) was amended in 2000 to incorporate moral rights and bring Australian copyright law into line with international norms. Generally moral rights apply to most creative materials in relation to acts or omissions that occur on or after 21 December 2000. Copyright must subsist in a work for moral rights to exist.
At the moment moral rights are personal rights that belong to an artist. In Australia, moral rights exist from the moment copyright arises and there is no need for the artist to ‘assert’ these rights. Moral rights are unable to be assigned, which means that the artist cannot sell these rights. Even if the copyright in the artwork has been assigned to someone else, moral rights remain the property of the artist.
There are three types of moral rights currently recognised in Australian law. Artists have the right to be attributed for their work, which requires a ‘reasonable’ form of identification to be adopted. Artists also have the right not to be falsely attributed for their work. The third moral right is that ofintegrity, which means that an artist has the right not to have their work treated in a manner that is derogatory or that prejudices their honour or reputation.Infringements on this right may include altering, adding to or cropping the artwork.
There are two defences to moral rights infringements. These were discussed in the recent litigation and are explored in more detail below. In brief, the defences are that the infringement was reasonable given the circumstances, or that the artist consented to the infringement.
Background to the case
Not long before Victor Chang was murdered in the early 1990s, the applicant in this case, Mr Meskenas, painted two portraits of the renowned heart surgeon in exchange for heart surgery. One of these portraits now hangs in the foyer of the Victor Chang Cardiac Research Institute at St Vincent’s Hospital in Sydney.
When Crown Princess Mary of Denmark visited Australia in early 2005, she and former NSW premier Neville Wran were photographed standing in front of the portrait at the Research Institute.
The Australian magazine Woman’s Day, which is owned by ACP Publishing Pty Ltd (ACP), purchased the photograph and it appeared in the magazine’s March 2005 Princess Mary special souvenir edition. However, the caption that accompanied the photograph wrongly attributed the authorship of the portrait to another painter, Jiawai Shen, who was to paint a picture of the Princess for the National Portrait Gallery.
Mr Meskenas and his son contacted ACP some 90 times over the course of a year seeking an apology and correction in print for the false attribution of authorship of the painting to a rival painter.
Personal apologies and an undertaking to provide a printed apology were conveyed at a meeting between ACP and the Mr Meskenas in May 2005. However, the printed apology did not appear in the magazine until June 2006, which was some months after Mr Meskenas commenced these proceedings. Further, when the retraction was finally published, the photograph was altered in that the image was reversed.
Mr Meskenas claimed damages on the grounds of infringement of copyright, and infringement of the moral right to attribution and the right against false attribution.
The action for copyright infringement failed because Mr Meskenas was unable to demonstrate ownership of copyright in the portrait. The Copyright Act provides that the commissioner of a portrait owns the copyright in that work. The Federal Magistrate found that Dr Chang had commissioned the portrait and paid for the work through the provision of his services as a surgeon.
Moral rights claims
The Court found that ACP breached the moral right requiring it to attribute the author of the portrait and that there was no defence available. The Court considered that there was no ‘reasonable’ reason why Mr Meskenas could not have been identified in the caption and ACP did not attempt to rely on any evidence about relevant industry practice or voluntary code that would have supported its lack of attribution. Indeed, it incorrectly identified another artist as the author so there was no magazine policy against identification. The portrait was signed and the magazine did not prove that it would have suffered onerous expense or difficulty in identifying Mr Meskenas as the artist of the portrait.
ACP attempted to argue that it did not ‘intend’ to falsely attribute the authorship of the portrait. There was detailed discussion of the meaning of the term ‘false’ and the Court ultimately determined that ‘false’ bears a meaning of ‘objectively incorrect’ and the respondent’s intention was therefore irrelevant.
The Court then considered the question of damages.
One of the most interesting aspects of the case was the comments made with respect to assessing damages for infringement of moral rights. As this issue had not been dealt with in Australian law previously, the Court was not guided by prior decisions. Somewhat surprisingly to many, the Court considered the compensation for a moral rights infringement as analogous to damages awarded for infringement of copyright.
In this case, nominal damages of $1,100 were awarded for the wrongful and non-attribution of the artwork and the distress caused to Mr Meskenas as a result.
The damages were nominal because Mr Meskenas had not suffered economic loss as a result of the infringement as no copies of the painting had been produced for sale nor had there been any other commercial dealing with the right. The magistrate found that the reputation of Mr Meskenas, a successful artist previously hung in the Archibald, was probably not significantly affected by the attribution error and any damage would have been alleviated by an early retraction on the part of ACP. Nonetheless, the Court noted that the error could conceivably have had some adverse affect on Mr Meskenas’ reputation.
Aggravated damages of $8,000 were also awarded as a result of the hurt caused to Mr Meskenas as a result of ACP’s conduct following the May 2005 meeting. The Court found that the magazine’s failure to provide a timely correction and the reversal of the copy of the portrait once a retraction finally appeared “should not go unremedied”.
Again, the magistrate explicitly treated damages for moral rights infringement as interchangeable with those awarded for copyright infringement in assessing aggravated damages.
ACP is expected to appeal this decision and it will be most interesting to see how the Federal Magistrate’s decision is treated on appeal.