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Getting to the ‘heart’ of Australia’s moral rights in employment law
Human resources professionals must review their contracts and ensure a moral rights clause, in contracts with employees and contractors, is included, writes Robert Lamb.
Robert Lamb
In 2006, a photo of Princess Mary of Denmark and the then premier of NSW in front of a portrait of renowned heart surgeon Dr Victor Chang, created by artist Vladas Meškėnas, was published in the Woman’s Day magazine. The caption published next to the photo incorrectly attributed the painting to another artist.
As Woman’s Day had failed to publicly apologise to the artist, Meškėnas took the publisher to court, claiming a breach of the right of attribution, and damages.
While the magazine publishers eventually accepted a mistake was made, the court found the damage had been done. Damages for $1,100 were imposed along with aggravated compensatory damages.
What the damages amount did not include is the further damage done to ACP Publishing and Women’s Day through the time lost to court proceedings, legal fees and critically, reputational damage.
Following this case, a number of other moral rights cases have been heard in Australia, and the learnings from these cases are of relevance for HR professionals and leaders.
So, what exactly is a moral right?
“Moral rights” is a piece of Commonwealth legislation that protects a person’s work under the Copyright Act. It ensures that works created by an author are attributed correctly, and those works aren’t subjected to anything that would result in distortion or derogation or that is prejudicial to the artist or their reputation. Equally, it also ensures the author has the right to object to any false attribution.
Moral rights can be applied to works covering all aspects within the creative industries — as this case from the Czech Republic illustrates.
In 2019, architect Jan Hančl sought legal action in the Municipal Court in Prague, claiming his moral rights had been infringed by the placement of two large advertising billboards on a building he designed. He asked the court to order the building’s owner to remove the advertisements and to pay the claimant an adequate monetary compensation for the moral harm.
Supporting Hančl’s case was the fact the building he designed had received recognition in 1984 and again in 2006 as a quality example of 1980s administrative building architecture.
The Municipal Court dismissed Hančl’s case as unfounded, based on the belief that the scaffolding supporting the advertising was independent of the building and that the author had not been harmed, even though his work had been concealed.
On appeal to the High Court, Hančl won the case, with the higher court rejecting the premise that covering a substantial part of the building did not constitute a mutilation of the architect’s work. The court also noted the advertising display devalued Hančl’s work.
As these cases show, great care needs to be taken to avoid impinging an artist’s moral rights.
How does this relate to employment law in Australia?
One interesting thing to note about our moral rights law is that while it is absolute in most foreign countries, in Australia, an author’s moral rights under the Copyright Act are alienable. That means the moral rights for a work can be transferred from one person to another.
This can be done by ensuring a moral rights agreement is stipulated in an employment contract. In most cases, this agreement should transfer the intellectual and moral rights of work done by the employee as part of their work to the employer. This is to ensure the rights are assigned to the employer, giving them the authority to reproduce the work of their employee as they see fit.
Without such an agreement, an employee has the power to take legal action, and this can certainly impact a business’ reputation and brand.
For instance, a staff member employed as a graphic designer could object to alterations made to a logo they once designed and take legal action. Likewise, a staff photographer could object to how their photo has been cropped in an advertisement, or an artist who was engaged to paint a mural could take action if the mural was then devalued by posters or infrastructure that obscured their work.
With this in mind, it’s important that all employment contracts, particularly those within the creative industries should include a moral rights clause.
What should be covered?
I would strongly urge HR leaders to review their contracts and ensure a moral rights clause, in contracts with employees and contractors, is included.
The inclusion of a moral rights clause protects both the business and the creator by making it clear from the start who owns the rights to any works produced under the agreement.
Not only do these clauses prevent potential future legal activity, but it also demonstrates respect for the importance of the work created.
Robert Lamb is the director of Hillhouse Legal Partners.
