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A case involving the moral right of integrity
29/02/2012

The case law regarding moral rights in Australia is sparse. Perhaps this is not surprising given that the intent of Australia’s moral rights legislation is to encourage respect for creative endeavour, rather than to increase litigation [1]. However, a recent dispute has ended in proceedings in the Federal Magistrates Court of Australia, whereby Federal Magistrate Driver found that an Australia DJ and promoter (Mr Fernandez) had infringed the moral right of integrity of an artist known as “Pitbull” (Mr Perez) [2].

 

The case involved a song called Bon Bon performed by Mr Perez. Mr Fernandez was said to have distorted the work by removing some of the original words at the beginning of the song, then replacing these with an “audio drop”. The audio drop contained spoken words to the effect of: “Mr 305 and I am putting it right down with DJ Suave”. “Mr 305” was a reference to Mr Perez and “DJ Suave” was a reference to Mr Fernandez [3].

 

Mr Perez had provided the audio drop to Mr Fernandez in order to promote a tour that later fell through. The failed tour is the subject of separate court proceedings between Mr Fernandez and Mr Perez and their relationship is described as not being a good one.

 

The Court said that the combination of the audio drop with the Bon Bon song made it sound like Mr Perez is “positively referring to Mr Fernandez at the beginning of the song, and that the reference forms part of the original work” [4].

 

Mr Fernandez streamed the distorted version, without permission, from a website he operated. The mixed song was available on the website for a period of roughly one month.

 

Federal Magistrate Driver said that as the Bon Bon song had not yet been released in Australia, there would have been some listeners who believed the distorted version to be the original song [5]. In addition to this, he said there would have been another class of listeners with better knowledge of both artists and the failed tour, who would likely have understand the addition of the audio drop to be mocking Mr Perez’s reputation [6].

 

The moral right of integrity in relation to an author’s work contained in section 195AI of the Copyright Act 1968, is the right “not to have the work subjected to derogatory treatment.”

 

Further, in relation to a literary, dramatic or musical work, “derogatory treatment” means anything that is “prejudicial to the author’s honour or reputation” [7]. As “prejudicial” is not specifically defined, what would be considered to be prejudicial in any given case is not entirely clear.

 

The court said that in order to demonstrate the work was subjected to “derogatory treatment”, all that is required to be proven is that the treatment of the work was prejudicial to the artist’s honour or reputation, not that the artist suffered any actual damage [8].

 

The court also accepted that for artists in the rap/hip-hop genre, honour and reputation can depend on associations with other artists, and that the distortion created a false association that was prejudicial in this case [9].

 

The court declared that the respondent infringed the moral rights of Mr Perez in the literary and musical works contained in the Bon Bon song. It also found that the respondent had infringed copyright in the Bon Bon sound recording by streaming the distorted song and playing it in clubs without an appropriate licence.

 

The applicants sought $35,000 for harm to Mr Perez’s reputation as well as $50,000 aggravated damages for distress. In the court’s view, however, this was an overstated claim that did not take into account Mr. Fernandez’s later conduct including the fact that he ultimately made some concessions, and gave an undertaking as well as an apology. The court stated that it did not accept there was any lasting damage caused to Mr. Perez’s reputation but rather, that his moral rights had been infringed causing him distress. The award for moral rights was $10,000 [10].

 

The scope of the moral right of integrity in Australia

 

This is an interesting case regarding the scope of the moral right of integrity. On the basis of this decision, potentially a few words mixed into a song could be held to be prejudicial and it would not be necessary to show any actual damage, but merely that something was “prejudicial” to the artist’s honour or reputation. As the court stated, it did not accept that there was any lasting damage to Mr. Perez’s reputation in this case.

 

However, the moral right of integrity is still not clear-cut as the decision doesn’t add significant guidance in terms of what will, and what won’t be considered “prejudicial”. Since the introduction of moral rights into Australian copyright legislation in 2000, there has been little explanation of the scope of moral rights in Australia, although there have been several relevant decisions overseas.

 

For example, in contrast to the Perez case, in the UK decision of Confetti Records v Warner Music UK Ltd, the plaintiff failed to convince the court that the addition of a rap over his track was prejudicial to his honour or reputation. In particular, he failed to provide sufficient evidence that the words were prejudicial, but more fundamentally, he failed to provide sufficient evidence regarding his honour or reputation [11].

 

Sampling and the moral right of integrity

 

Another interesting aspect of the present case involving Mr. Perez is that the Bon Bon song itself is not entirely original. It’s an arrangement of the successful, We No Speak Americano, by Australian artists Yolanda Be Cool and DCUP and the nineteen fifties song, Tu Vuo’ Fa’ L’Americano by Renato Carosone. The Yolanda Be Cool song also uses a sample of Tu Vuo’ Fa’ L’Americano.

 

Given this, it’s worth considering the moral rights implications of the sampling in relation to all the songs. We No Speak Americano contains part of Tu Vuo’ Fa’ L’Americano. Bon Bon contains part of We No Speak Americano and Tu Vuo’ Fa’ L’Americano. However, presumably, licences were sought in order to create both Bon Bon and We No Speak Americano, and any moral rights issues would likely have been dealt with at the same time.

 

New exceptions in copyright law and moral rights

 

There has been some talk amongst copyright experts and academics of the possibility of introducing new exceptions into Australian Copyright law, including discussion about whether certain popular culture practices such as mashups could be addressed by this [12].

 

If an exception were introduced, thought should be given to how it would interrelate with moral rights.

 

It is difficult to see how an exception provides strong comfort when the door is still potentially left open for a moral rights claim. This is particularly so given that on the basis of the Perez case, even a line or two added to the start of the song was held to be prejudicial, let alone say, the melding of two entire works.

 

There isn’t a clear answer to this issue although it warrants contemplation given that similar issues arise in relation to existing exceptions like the fair dealing exception for parody and satire.

 

Read the full decision at the following address:

 

http://www.austlii.edu.au/au/cases/cth/FMCA/2012/2.html

 

[1] Australian House of Representatives 1999, Second Reading Speech by Attorney General Hon Daryl Williams AM QC MP, Copyright Amendment (Moral Rights) Bill 1999

[2] Perez & Ors v Fernandez [2012] FMCA 2 (10 February 2012)

[3] Perez & Ors v Fernandez at 64

[4] Perez & Ors v Fernandez at 65

[5] Perez & Ors v Fernandez at 86

[6] Perez & Ors v Fernandez at 88

[7] Section 195AJ of the Copyright Act 1968

[8] Perez & Ors v Fernandez at 96

[9] Perez & Ors v Fernandez at 98

[10] Perez & Ors v Fernandez at 107

[11] Confetti Records v Warner Music UK Ltd No 2003 EWCH 1274 (CH) at 155-157

[12] Directions in Copyright Reform in Australia, The Copyright Council Expert Group, http://www.copyright.org.au/pdf/Copyright%20Council%20Expert%20Group%20-%20Paper%202011.pdf