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Case Note - Perez and Ors v Fernandez [2006] FMCA 1136


Decision: Perez and Ors v Fernandez [2006] FMCA 1136
Jurisdiction: Federal Magistrates Court of Australia
Coram: Driver, Federal Magistrate

Key words: Moral Rights; Sound Recording; Damages; Aggravated Damages; Evidentiary burden of Applicant; Defence of Reasonableness

Legislation: Part IX, Copyright Act 1968 (Cth)

Facts: The parties in this case were involved in the production of popular urban music. The Respondent obtained a copy of the Applicant’s composition and manipulated it in a way so as to give a false impression of, inter alia, the Applicant’s artistic association within the industry. The infringing act in question undertaken by the Respondent consisted of the deletion of a prominent part of the Applicant’s composed work, and its replacement with words performed by the Applicant in an entirely different context. This made it appear that the Respondent was a subject of the composition and created the impression that the Applicant had authored the altered content himself and included it in the composition. The manipulated composition was then uploaded by the Respondent to a location on the internet and available for public consumption.

Held: (In relation to the Applicant’s Moral Rights claim)

Relevant Law

The moral rights protections in Part IX of the Copyright Act 1968 (Cth) have independent existence from the bundle of “economic” rights protected by copyright, are inalienable to the author, and give protection to the investment of the author’s personality in his or her creation. Moral rights draw their jurisprudential force from civil law traditions and a number of international copyright and human rights conventions to which Australia is a party. The author’s moral rights recognised in Part IX of the Act comprise the right of integrity of authorship. Specifically, section 195AI provides that the right of integrity of authorship is the author’s right “not to have the work subjected to derogatory treatment”. Section 195AZA(1)(b) of the Act sets out the remedies available.

Judicial Considerations

On the evidence before the Court, the change made to the Applicant’s composition by the Respondent were regarded as a “distortion”, “alteration” or “mutilation” of the Applicant’s work, thereby satisfying that element of section 195AJ. The fact that the Respondent’s treatment of the Applicant’s composition was “prejudicial to the author’s honour or reputation” was found to be evident in two ways:


  1. Given that the Applicant’s composition had not yet been commercially released in Australia at the time of the infringement, there would have been a class of listeners who upon listening to the Applicant’s composition for the first time will have presumed that the altered section formed part of the authentic, original work. On the evidence, the Court accepted that the fact that the reference to the Respondent in the altered version of the Applicant’s composition had not been authorised by its author should be regarded as prejudicial to the author per se. The false association that the modified composition created in the mind of these listeners was one which the Applicant himself strongly considered to be prejudicial to his reputation, and which caused him anger and distress.
  2. The alternative class of listeners who were more intimately aware with the circumstances of the litigants industry, career and professional relationships, were likely to have been alert to the Respondents’ ruse. They would have likely been aware of the underlying circumstances of the relationship of the litigants. Listeners in this class would have know the significance of the Applicant’s associations as an artist, and would have understood the alterations to the song made by the Respondent to be mocking the Applicant’s reputation.

The Court applied the decision of Raphael FM in Meskenas v ACP Publishing Pty Ltd [2006] FMCA 1136 in relation to the Applicant’s claim for injured feelings and aggregated damages. On the evidence, the Court found that such harm was suffered by the Applicant and he was accordingly entitled to be appropriately compensated. The Court further found that the Respondent similarly aggravated the harm caused by his conduct after the infringement was made known to him by the Applicant, and accordingly, the Applicant was entitled to be compensated.

An action for infringement of moral rights is actionable as a breach of statutory duty without the need for proof of damage. Under the legislative scheme, what is required for a breach of the author’s right of integrity is the subjection of the work to “derogatory treatment”, meaning, the doing of anything in relation to a work that results in a material distortion of, the mutilation of, or a material alteration to the work (or anything else) that is prejudicial to the author’s honour or reputation: section 195AIand 195AJ. A person infringes the author’s right of integrity if he so subjects the work to derogatory treatment: section 195AQ(3).

The Court held that all that was required was proof that the Respondent’s act in respect of the Applicant’s composition was prejudicial to the Applicant’s honour or reputation, not that the Applicant suffered damage. The legislation did not require that the Applicant’s reputation had been prejudiced. All that was required was that the Respondent’s act in relation to the work “is prejudicial”.

On the evidence, and in this particular industry, the Court found that the artist’s honour and reputation depended on whom he associates with, and this is a driver of artistic success. The distortion of the Applicant’s work, which created a false association in the minds of the public as to the Applicant’s associations, was regarded as prejudicial to his honour and reputation as an artist per se.

The Court held that there are clear parallels between claims for the infringement of moral rights and defamation law, and noted that where defamation protects reputation, moral rights protect both “honour and reputation”. The Court therefore found that the loss which is compensable includes not only pecuniary loss, but also damage to goodwill and reputation enjoyed by the author.

Nevertheless, the Court did not accept that the Applicant’s reputation had suffered lasting damage.  The Applicant’s moral rights were infringed in circumstances which caused him distress, and which were serious, but the Respondent ultimately saw the error of his ways and appropriately gave undertakings and an apology, however grudgingly.

Matters to be taken into account when deciding whether the defence of reasonableness is available under section 195AS include:

  1. The nature of the work infringed. The Court found that the composition existed in a genre in which associations between artists is of considerable significance.
  2. The purpose of the modifications on which the allegation of infringement is based. The Court found that the purpose of these modifications was either to promote the Respondent for his own benefit, or to mock the Applicant as an act of retribution.
  3. The manner and context of the modifications on which the allegation of infringement is based. The Court considered the mode of publication of the infringing content (i.e. ‘streaming’ from the Respondent’s website) and the existing relationship between the parties.

On the evidence, the Court found that the defence of reasonableness was not available to the Respondent.

Held for the Applicant.

Total damages awarded $10,000.00.

Editorial Note: This case-note is produced using the language of the Court as closely as possible so as to remain faithful to judicial dicta. This case note may not cover all the issues under judicial determination but highlight one area of judicial concern or deliberation. The case-note is not provided as a form of legal advice. Readers are encouraged to read the original judgment and seek formal legal advice in relation to their matter. 

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