9 Sep
2006

















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     Moral Rights

Last month saw judgement by Federal Magistrate Raphael in Meskenas v ACP Publishing Pty Ltd, a landmark in development of Australia's moral rights regime.

Moral rights are an aspect of intellectual property, concerned with respect for an author's creativity and thus unrelated to notions of obscenity or blasphemy. They were explicitly recognised in the 2001 Copyright Amendment (Moral Rights) Act, stronger than US legislation such as the national Visual Artists Rights Act (VARA) of 1990 and state legislation such as the 1979 California Art Preservation Act.

The Australian legislation is discussed in Maree Sainsbury's Moral Rights & their Application in Australia (Leichhardt: Federation Press 2003). It encompasses a right of attribution, ie for authors to be acknowledged as creators of their works. That right extends traditional 'passing off' and other protection.

The Meskenas case follows publication in Woman's Day, a magazine from the ACP (Packer) stable with a circulation of over two million, of a photograph of a visiting Danish royal in front of a portrait of the late Dr Victor Chang at the Victor Chang Cardiac Research Institute, Sydney.

The photo was captioned "She also visited the Victor Chang Cardiac Research Institute where she posed with the portrait of Dr Chang (below) by Jiawei Shen, who's painting the Princess for the National Portrait Gallery in Canberra".

Alas, the portrait was painted by 89 year old Vladas Meskenas rather than Jiawei Shen. He was understandably peeved to find his creativity attributed to someone else and through his son Eugene approached ACP.

The publisher accepted that an apology was appropriate but as Raphael FM notes in his crisp judgement, "no apology was provided, notwithstanding that Eugene Meskenas made approximately 90 telephone calls in total to the magazine". The editor of Woman's Day

accepts that Eugene did keep on telephoning her and asking why an apology had not been published, she states that she thought it had been but that it had slipped through the cracks. She told the court that she was happy to provide the apology, they just had to find the right time to do it.

The 'right time' didn't appear until just before the court hearing, with Meskenas taking action against ACP.

That action was successful, with the plaintiff being awarded $9,100.

Raphael FM awarded $8,000 in relation to infringement of Meskenas' moral right, commenting that

I should make it clear this award relates to the conduct of the respondent and the additional hurt caused by that conduct to the applicant following his advice to it that his copyright/moral right had been infringed. It is therefore additional to the lesser sum [$1,100] awarded in respect of the original infringement.

The copy of the judgement kindly provided to us by the Magistrate preceded a decision on costs, which conceivably outweigh the damages received by Meskenas.





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