Blog

“What are Moral Rights?” – A Guide for Creatives

  • 20 May 2022
  • Studio Legal

Written by Alyce Evans and Jennifer Tutty, Principal

When you create an original work, Australian copyright law grants you a bundle of rights to deal with that work. The most commonly known are the right to reproduce and publish your work, and to prevent others from copying or using it.

What are less commonly known, are the moral rights that follow the creation of a work. The rights to be properly identified as the author, to ensure others don’t falsely claim it as their own and to prevent them from treating your work in a derogatory way.

Whether you’re a creative who wants to ensure their moral rights are being respected, or you’re planning to use a copyright work and don’t want to infringe moral rights, we’ve got you covered. In this blog, we introduce you to the world of moral rights.

What are moral rights?

Moral rights are a relatively recent concept in Australian copyright law, having been introduced to the Copyright Act 1968 (Cth) (Copyright Act) by amendment in 2000. They concern the reputation of the copyright author in connection with their work. These rights are separate and additional to copyright.

Moral rights are:

– The right to be attributed as the author of the work;

– The right not to have the work falsely attributed to someone else; and

– The right to take action if the work is treated in a derogatory way (i.e. a way that could be harmful to the author’s reputation). This is sometimes known as a ‘right of integrity’.

Who owns the moral rights?

Unlike copyright, moral rights cannot be bought or sold. They belong to the original author of the work, even if that author sells or assigns the copyright.

‘Authorship’ under the Copyright Act

When it comes to the Copyright Act, the term ‘author’ has an expanded meaning. It is the person who creates, writes, composes, paints, draws, codes or does anything else to bring into existence the copyright ‘work’. So, if you write a song, you are the ‘author’ of that song, for copyright purposes.

How long do moral rights last?

Moral rights continue for as long as the copyright in the work continues, which is usually the life of the author plus 70 years. Even when an author dies, their personal representative, such as the executor of the estate, may still exercise the author’s moral rights.

The exception here is in the case of films, where the right of integrity will only continue for the lifetime of the director, producer or screenwriter.

Q: “What happens if my moral rights are infringed?

If you can establish your moral rights have been infringed, a court may grant you:

– Financial compensation (damages);

– An injunction to stop the use;

– A public apology;

– An order for a declaration that the infringement be addressed; or

– An order for a declaration to reverse or remove the derogatory treatment of the work.

There is, however, no moral rights infringement if:

– The author has consented to the action or omission that would otherwise infringe moral rights; or

– An exception or the defence of reasonableness applies.

Q: How do I protect my moral rights?

In Australia, there is no need to assert your moral rights in a work. In other words, you do not need to state that you have moral rights for them to be enforceable.

However, asserting your moral rights may be required in some other countries, including New Zealand. If your work could be used in other countries, you should seek legal advice to ensure you have appropriate clauses in your contracts asserting your moral rights.

Tips to protect your moral rights

– Always look out for moral rights clauses in contracts and do not agree to clauses you do not understand.

– If you have been asked to give consent for acts and omissions, which would otherwise infringe your moral rights, you should seek legal advice to ensure you are not giving unnecessarily broad consents.

– Look out for contracts that ask you to waive, assign or otherwise ‘give up’ your moral rights. Moral rights cannot be assigned or waived in Australia, but waivers may be enforceable and even appropriate if your work may be used overseas.

– Consider how you want to be attributed in relation to the work. You may want to specify that the title of the work is always stated, together with your name and the year it was created or first published.

Q: How do I avoid infringing someone else’s moral rights?

If you are dealing with literary works, musical works, dramatic works, or artistic works, or films made after 21st December 2000, you should be careful to address moral rights. If you do something that is contrary to an author’s moral rights, it will likely be considered an infringement.

Tips to avoid infringing the moral rights of others

– Make sure that you are attributing the correct author of the work when you are reproducing it or communicating it to the public. The attribution must be clear and reasonably prominent.

– Avoid making any changes to the work, which could be considered derogatory. This can include using the work in a context that prejudices the author’s reputation.

– If you have altered the work in any way, be sure you are not representing the work as the author’s unaltered work.

Defences

There are some situations where you may not have to address moral rights. For example, it will not be an infringement if the act is ‘reasonable’ in the circumstances. Additionally, an act will not be infringement if the author has given consent to that act.

Infringement of moral rights

A court can make orders to remedy the infringement of moral rights, including damages and injunctions. If you think you have infringed the moral rights of an author, you should seek legal advice about how to mitigate the damage.

Written by Alyce Evans and Jennifer Tutty, Principal

Published: 7 April 2022

Further Information

If you have any legal questions relating to moral rights or copyright law, please contact us through our online form or via email at hello@studiolegal.com.au.

For further information on copyright law, check out our blog, ‘9 Common Mistakes People Make About Copyright Law‘.

Photo by Serg Bataiev on Unsplash.

DISCLAIMER

The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.