Scintilla – a flash, a spark, an iota. Shorthand for creativity and an indicator of inventiveness under Australian law.

Monday, May 20, 2013

Sins of the publisher

By Lawyer Rob Clark

The Corby family is back in the news, following recent litigation against Allen & Unwin, publishers of an 'expose' of the Corby family, Sins of the Father.

The Corby family sued Allen & Unwin, in two separate proceedings for defamation and copyright infringement. The decision in the copyright infringement proceedings was swiftly handed down following trial in Corby v Allen & Unwin Pty Ltd [2013] FCA 370.

The swiftness of the decision was likely due to the infringement of copyright being clear cut. The book reproduced five photographs which were the property of one of Mercedes Corby (Schapelle's sister), Michael Corby Jnr (Schapelle's brother) and Rosleigh Rose (Schapelle's mother). The judge effectively found that Allen & Unwin knowingly launched the book at risk of not checking whether they had a licence from the copyright owner, or, in most cases, who the copyright owner was. The Corby family were awarded more than $50,000 in damages and additional damages (less than the $300,000 originally sought).

As the infringement was so straight forward, there are few lessons to take away from the decision, aside from the fact that if you want to launch a book knowingly at risk of copyright infringement, be prepared to wear the consequences, including significant additional damages.

The discussion in regards to the moral rights claim, however, was more interesting.

Moral rights

Since 2000, moral rights have sat alongside copyright in the Copyright Act in Australia but are usually forgotten or dismissed as copyright's melodramatic little Gallic brother, concerned with artistic 'honour' and 'integrity' rather than money. There is some truth to the view, given the difficulty of proving certain aspects of moral rights, and fairly extensive exceptions to the application of the rights. However, there has been some action of late in the field of moral rights, with the decision of Perez v Fernandez [2012] FMCA 2. That decision involved the rapper Pitbull using the right of integrity of authorship (the right not to have one's work subject to 'derogatory treatment') to gain $10,000 in damages (in addition to damages for copyright infringement) from a DJ who had inserted a promotion for his own services into one of Pitbull's songs.

The relevant moral right in the Corby litigation was the right of attribution, or the right (in those proceedings) of a photographer to have their name placed reasonably prominently with their photograph when it is reproduced. As Allen & Unwin in most cases did not know who the copyright owner was, they certainly could not satisfy the right of attribution. The publisher tried to argue that it did not need to attribute the names because the standard practice in the publishing industry was not to (one of the significant exceptions to the application of the rules). The judge rejected this argument because the publisher had not failed to attribute because of the industry practice; it had failed to attribute because it did not bother to check who the photographers of the photos were.

Despite the obvious and flagrant breach of the right of attribution, the judge awarded no damages. This was because Corby family's grievance was not directed at the fact that they, as artists, had been wronged by the lack of attribution of their names to their photos – rather it was directed towards the subject matter of the book. In fact, the judge found, they would have preferred that their names not be attributed with the photographs, as this may have suggested that they somehow approved of or were affiliated with the book.

The case emphasises the principles which underlie moral rights, which are quite distinct from copyright. Allen & Unwin arguably flagrantly ignored and infringed both the copyright and moral rights of Mercedes, Michael and Rosleigh, yet only one of those infringements led to any monetary award. Therefore, this decision will do little to change the somewhat secondary status of moral rights.

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