Meskenas v ACP Publishing Pty Ltd

Case [2006] FMCA 1136


FEDERAL MAGISTRATES COURT OF AUSTRALIA

MESKENAS v ACP PUBLISHING PTY LTD [2006] FMCA 1136

COPYRIGHT – Artistic work − where respondent published photograph of a portrait painting − where applicant has authorship of the painting − where respondent wrongfully attributed authorship to another painter − where respondent failed to print an apology and correction for substantial period of time following publication despite repeated requests by applicant to do so − where applicant was commissioned to paint the portrait − whether copyright of the painting owned by applicant or individual who commissioned the applicant − whether respondent innocently infringed copyright under s.115(3).

MORAL RIGHTS − whether moral right of attribution infringed − whether, in addition, right not to have authorship falsely attributed also infringed − whether meaning of “falsely” requires intention on part of respondent.

DAMAGES – Assessment − whether applicant entitled to compensatory and additional damages for breach of copyright − whether applicant entitled to aggravated damages in addition to damages for infringement for moral rights.

Copyright Act 1968, ss.31, 35, 42, 65, 68, 115, 193, 194, 195A, 195AC, 195AE, 195AI, 195AO, 195AP, 195AR, 195AZA

Milwell v Olympic Amusements (1999) 161 ALR 302
Sheldon v Metrokane (2004) 61 IPR 1
Cody Opal v Dimasi (2004) 64 IPR 378
Golden Editions Pty Ltd v Polygram Pty Ltd (1996) 135 ALR 638
Kalamazoo v Compact Bus Systems (1985) 84 FLR 101
Murphy v Farmer (1988) 79 ALR 1
Director of Public Prosecutions v Colin Jonathon Hennig (2005) 192 FLR 223
Tuck & Sons v Priester (1887) QB 629
McDonald v Girkaid Pty Ltd (2004) Aust Torts Reports 81-768
Re Ingleton and Registrar of Marriage Celebrants [2004] AATA 1044
Musgrave & Ors v Martin (2003) 130 FCR 546
Sternberg v R (1953) 88 CLR 646
Cameron v Holt (1980) 142 CLR 342
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1
VBH & Anor; Secretary, Department of Family and Community Services [2006] AATA 1
Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596
ASX v McLachlan [2001] NSWSC 1061
QT v Legal Services Commissioner [2006] NSWADTAP 13
Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240
Polygram Pty Ltd v Golden Editions (1997) 38 IPR 451
Raben Footwear v Polygram Records (1997) 75 FCR 88
Sony Entertainment Australia v Smith (2005) 215 ALR 788
LED Builders v Eagle Homes (1999) 44 IPR 24
Fraserside Holdings v Venus Adults Shops (2002) 222 ALR 388
Font v Paspaley Pearls & Ors [2002] FMCA 142
Clark v Associated Newspapers Ltd (1998) 1 All ER 959
Carlton Illustrations & Anor v Coleman & Company Ltd [1910] 1 KB 771
Commonwealth of Australia v Evans [2004] FCA 654

Laddie et. al (2004) The Modern Law of Copyright and Designs (4th Ed) (Butterworths: United Kingdom)
Lahore Copyright and Designs (Butterworths: Sydney)

Applicant: VLADAS MESKENAS
Respondent: ACP PUBLISHING PTY LTD
File Number: SYG 643 of 2006
Judgment of: Raphael FM
Hearing date: 18 July 2006
Date of Last Submission: 18 July 2006
Delivered…

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AGLC
Meskenas v ACP Publishing Pty Ltd [2006] FMCA 1136
Case
[2006] FMCA 1136
Decision Date

CaseChat Overview and Summary

The case of Meskenas v ACP Publishing Pty Ltd involved the applicant, Meskenas, who claimed that his copyright in a portrait painting was infringed by the respondent, ACP Publishing, which published a photograph of the painting in one of its magazines. Meskenas was the artist who painted the portrait, but the respondent attributed authorship of the painting to another painter, an error that Meskenas repeatedly requested to be corrected. The respondent did not print a correction for an extended period despite repeated requests by Meskenas. Meskenas sought damages for copyright infringement, breach of moral rights, and publication of a correction and apology. The case was heard in the Federal Circuit Court of Australia.

The primary legal issues the court had to decide were whether Meskenas owned the copyright in the painting or if the copyright was owned by the individual who commissioned the painting. The court also had to determine if the respondent's actions constituted innocent copyright infringement and if the respondent's attribution of authorship to another painter was a false attribution of authorship under the Copyright Act. The court also had to decide if Meskenas was entitled to damages for breach of copyright, breach of moral rights, and the respondent's failure to publish a correction and apology.

The court held that Meskenas was the owner of the copyright in the painting as he was the artist who created it. The court found that the respondent's attribution of authorship to another painter was a false attribution of authorship, even if there was no intention to deceive. The court also found that the respondent's actions did not constitute innocent copyright infringement as they failed to take reasonable steps to identify the copyright owner. The court awarded Meskenas damages for breach of copyright, breach of moral rights, and the respondent's failure to publish a correction and apology. The court ordered the respondent to pay Meskenas the sum of $9,100.00 in damages.

In conclusion, the court found in favour of Meskenas and held that the respondent's actions constituted copyright infringement and a breach of moral rights. The court awarded Meskenas damages for the breach of copyright, breach of moral rights, and the respondent's failure to publish a correction and apology. The court ordered the respondent to pay Meskenas the sum of $9,100.00 in damages.

Orders

Orders of the court

1.

Respondent to pay the applicant the sum of $9,100.00 damages for breach of ss.195AO and 195AP Copyright Act 1968.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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