24 April 2013

Attribution and Moral Rights in Photographs

More moral rights law - extending Meskenas and Perez - in Corby v Allen & Unwin Pty Limited [2013] FCA 370, the dispute over use of photographs in Eamonn Duff's Sins of the Father (Allen & Unwin), an account by that the Court identifies as "condemnatory of both Schapelle Corby and her father Mick Corby".

Mercedes Corby, brother Michael Corby and mother Rosleigh Rose complained that copyright in five photographs under the Copyright Act 1968 (Cth) had been infringed by the respondent and that the moral right of attribution of the author had been infringed in relation to four of the photographs. The publisher unsuccessfully argued that the photos were supplied to the author  or members of the media for publication.

The book features 37 photographs.
Ownership of copyright in one of the photographs has been passed by inheritance to four people – Rosleigh Rose being one of them. She is now a 25% owner of the copyright in that photograph, holding her share as a tenant in common. A co-owner of copyright holding an interest in copyright as a tenant in common may sue independently of other co-owners for protection of that interest ... Copyright in the other photographs remains in the ownership of their authors – i.e. the person who took the photograph. Copyright in one each of the remaining photographs is owned by Mercedes Corby and Michael Corby. Copyright in the other two photographs remains owned by Rosleigh Rose.
Buchanan J found that publication of the photographs in the book had infringed the exclusive rights of the copyright owners. No great surprises there.

The Court went on to consider moral rights under the Copyright Act.
The applicants also sought remedies under Part IX of the Copyright Act, which deals with moral rights. Such rights are additional to other rights (s 192(1) of the Copyright Act). Where an author dies, moral rights (so far as here relevant) may only be exercised by a legal personal representative and are not transmissible by will (s 195AN(3) of the Copyright Act). The third applicant, therefore, has no enforceable moral right in the Kuta photograph. 
One moral right (the only one relevant here) is a right of attribution of authorship. Section 193 of the Copyright Act provides:
Author’s right of attribution of authorship 
(1) The author of a work has a right of attribution of authorship in respect of the work. 
(2) The author's right is the right to be identified in accordance with this Division as the author of the work if any of the acts (the attributable acts) mentioned in section 194 are done in respect of the work. 
Reproduction of a photograph in a material form is a relevant attributable act (s 194 of the Copyright Act). None of the photographs carry attribution of authorship, although in the text of the book Rosleigh Rose is identified as the author of the airport photograph. 
Section 195AO of the Copyright Act provides: 
195AO Infringement of right of attribution of authorship 
Subject to this Subdivision, a person infringes an author's right of attribution of authorship in respect of a work if the person does, or authorises the doing of, an attributable act in respect of the work without the identification of the author in accordance with Division 2 as the author of the work.
However, s 195AR(1) and (2) provide:
195AR No infringement of right of attribution of authorship if it was reasonable not to identify the author  
(1) A person who does, or authorises the doing of, an attributable act in respect of a work does not, because the author of the work is not identified, infringe the author's right of attribution of authorship in respect of the work if the person establishes that it was reasonable in all the circumstances not to identify the author. 
(2) The matters to be taken into account in determining for the purposes of subsection (1) whether it was reasonable in particular circumstances not to identify the author of a literary, dramatic, musical or artistic work include the following:
(a) the nature of the work; 
(b) the purpose for which the work is used; 
(c) the manner in which the work is used; 
(d) the context in which the work is used; 
(e) any practice, in the industry in which the work is used, that is relevant to the work or the use of the work; 
(f) any practice contained in a voluntary code of practice, in the industry in which the work is used, that is relevant to the work or the use of the work; 
(g) any difficulty or expense that would have been incurred as a result of identifying the author; 
(h) whether the work was made: (i) in the course of the author's employment; or (ii) under a contract for the performance by the author of services for another person; (iii) if the work has 2 or more authors – their views about the failure to identify them.
 Buchanan J states that
The respondent argued that it was reasonable not to attribute authorship of any of the photographs because there is an industry practice that authorship of photographs is not always attributed. Ms Kaiser gave some evidence to that effect and there were some examples provided of books about Schapelle Corby in which authorship of photographs of the Corby family was not attributed. The respondent did not argue that it was sufficient to identify Rosleigh Rose as the author of the airport photograph in the text of the book; and that identification does not appear to me to satisfy the requirements of ss 195AA and 195AB of the Copyright Act, which require that identification to be clear and reasonably prominent. 
I am prepared to accept that attribution of photographs (particularly photographs from private collections) is not always done. So much is accommodated by the matters referred to in s 195AR(2) itself, such as the difficulty of identifying an author. However, there is no evidence in the present case that lack of attribution was due to the observance by the respondent of any industry practice. Some photographs in the book were attributed. No attempt was made to establish that the photographs for which no attribution was made were so treated pursuant to some industry practice, or because it was too difficult to find the author or for any other particular reason contemplated by s 195AR. 
In the present case, no effort was made by Mr Duff or the respondent to identify any author whose identity was unknown, although Mr Duff clearly knew that Rosleigh Rose was the author of the airport photograph. I conclude that the respondent, and Mr Duff, chose not to make any enquiries. I am not satisfied it would have been difficult or expensive to do so. I am not satisfied the respondent was following any particular industry practice. I conclude that it followed its own desires and that its conduct infringed the moral right of attribution of the first applicant in the Polda photograph, the second respondent in the Broadwater photograph and the third applicant in the Santa photograph and the airport photograph. Remedies for infringement of moral rights are available under s 195AZA of the Copyright Act which provides (relevantly):
195AZA Remedies for infringements of author’s moral rights 
(1) Subject to section 203, the relief that a court may grant in an action for an infringement of any of an author's moral rights in respect of a work includes any one or more of the following: (a) an injunction (subject to any terms that the court thinks fit); (b) damages for loss resulting from the infringement; (c) a declaration that a moral right of the author has been infringed; (d) an order that the defendant make a public apology for the infringement; (e) an order that any false attribution of authorship, or derogatory treatment, of the work be removed or reversed. 
(2) In exercising its discretion as to the appropriate relief to be granted, the court may take into account any of the following: (a) whether the defendant was aware, or ought reasonably to have been aware, of the author's moral rights; (b) the effect on the author's honour or reputation resulting from any damage to the work; (c) the number, and categories, of people who have seen or heard the work; (d) anything done by the defendant to mitigate the effects of the infringement; (e) if the moral right that was infringed was a right of attribution of authorship – any cost or difficulty that would have been associated with identifying the author; (f) any cost or difficulty in removing or reversing any false attribution of authorship, or derogatory treatment, of the work. ..... (Section 203 has no application in this case.)
The applicants have sought relief under s 195AZA(1)(b), (c) and (d). However, s 195AZGG(3) provides:
195AZGG Saving of other rights and remedies 
... (3) Any damages recovered in proceedings brought otherwise than under this Part are to be taken into account in proceedings brought under this Part and arising out of the same event or transaction. 
As a result any damages awarded for infringement of copyright must be taken into account in assessing damages for moral infringement. 
I am not satisfied that any of the applicants in fact suffered a loss resulting from lack of attribution, whether loss includes commercial loss or injury to feelings. There is no reason to conclude that any of the applicants would have wished their name to be published in connection with a photograph of which they were the author, thereby suggesting they were in some fashion or other implicated in, or receiving credit for, reproduction of the photograph in connection with the book. It is not necessary for me to consider, either, whether aggravated damages might be available under s 195AZA(1)(b) in addition to compensatory damages under that provision. There is no basis to conclude that any conduct of the respondent has caused loss, hurt, embarrassment or damage to the reputation of any of the applicants as artists or as authors of any photograph. That status has no relevance for the complaint which the applicants have made which is that their distress and sense of outrage arises as family members, not as authors of photographs having a moral right of attribution with respect to those photographs. 
I am prepared to make a declaration that the moral rights of attribution of each of the applicants has been infringed in the present case, even though the infringement seems to me to be more a question of form than substance. That is because, in my view, the respondent is not entitled to the benefit of any discretion to withhold such relief, having regard to its demonstrated preparedness to disregard the provisions of the Copyright Act. 
However, I see no utility in ordering an apology with respect to a failure to make an attribution of authorship to which, in each case, the applicants would have been indifferent or would have found distasteful.