Australia’s first decision on the failure to attribute the author of an artistic work was handed down last year and offers some instructive lessons for agencies.
That decision held that the treatment by Woman’s Day, of a photograph of a painting was in breach of the artist’s moral rights. Moral rights protect an author’s right to be attributed as the author, unless it is reasonable to do so.
The Court held that there was no "reasonable" reason why the artist, Mr Meskenas, could not have been attributed as the artist by ACP. That Woman’s Day in fact both misidentified the photographer and had no policy in place to deal with such misidentification was telling against it.
The court rejected ACP’s contention that "intention" must be shown to found a claim for infringement of moral rights, stating that for a claim of "false" attribution to succeed one need only show it is "objectively incorrect" (i.e. the intention in the false attribution is irrelevant).
