Moral Rights in Copyright Law

Moral rights are specific rights afforded to creators of works in addition to ordinary copyright protections. Moral rights were only included in the Copyright Act 1968 (Cth) in 2000 and are still a relatively new area of law.

What are moral rights?

Moral rights are the rights of:

  • attribution of authorship;
  • not to have authorship falsely attributed; and
  • integrity of authorship.

Moral rights protect the author’s personality in his or creation, they are personal to the author. Importantly, the copyright owner and the creator of the work may be different people.

Perez v Fernandez [2012] FMCA 2

In the first case considering moral rights in Australia, Perez v Fernandez [2012] FMCA 2, an Australian DJ was found to have infringed the moral rights of Mr Perez (professionally known as ‘Pitbull’). Mr Fernandez, operating under the name DJ Suave, was found to have infringed the moral rights of Mr Perez by distorting the “Bon, Bon” Song in a way that was found harmful to the author’s reputation.

The facts

The Bon, Bon Song was written by Mr Perez and released in 2010, and accordingly as the author, he held the rights of integrity of authorship in the song. The copyright in the song was owned by US record label ‘Mr 305’ and Australian record label ‘Sweat It Out’.

Mr Fernandez and Mr Perez had an agreement for Mr Perez to promote an Australian tour, which was the subject of separate proceedings. As part of this Agreement, Mr Fernandez obtained “Audio Drops” of Mr Perez saying “Mr 305 and I am putting it right down with DJ Suave”.

Mr Fernandez obtained a copy of the Bon, Bon Song and used audio editing software to mix the song with the Audio Drop and subsequently uploaded a copy of the “Mixed Bon, Bon Song” on a publicly available website which could be ‘streamed’ but not downloaded.

The submissions

Mr Perez argued that Mr Fernandez’s distortion of the Bon, Bon Song was done without authority and by reproducing and communicating it to the public infringed Mr Perez’s moral rights to the integrity and authorship pursuant to s 195AI of the Copyright Act.

The findings

The Court found that the Mixed Bon, Bon Song “made it sound to the listener like Mr Perez is positively referring to Mr Fernandez … and that this reference forms part of the original work”. The Court agreed that Mr Perez had been harmed by the editing of the song by untruly representing a positive association between the two. The Court considered the change to be a “distortion” of the work and “prejudicial to the author’s honour or reputation’.

Mr Fernandez was found to have both infringed copyright in the Bon, Bon Song and infringed Mr Perez’s moral rights by untruly representing he was a subject of the song.

The Court commented that an action for infringement of moral rights does not require the author to establish any quantifiable damage and is actionable as a breach of statutory duty. All that is required for the author to have a claim is “derogatory treatment” of the work which the Court defined to be anything that results in material distortion, mutilation or material alteration of the work that is prejudicial to the author’s honour or reputation. If you require any advice on your intellectual property rights, please contact our office.

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