Perez v Fernandez

Case [2012] FMCA 2

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PEREZ & ORS v FERNANDEZ [2012] FMCA 2
COPYRIGHT – Infringement – moral rights – sound recording altered by the respondent and streamed on his website – substitution of words by the performer used in a different context – purpose and effect of substitution was to leverage off the reputation of the author and to mock him – award of damages for breach of the author’s right to integrity of authorship.
Copyright Act 1968 (Cth), ss.85, 89, 101, 115, 195AI, 195AJ, 195AO, 195AP, 195AQ, 195AS, 195AZA
Copyright Amendment (Moral Rights) Act 2000 (Cth)
Federal Magistrates Act 1999 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
APRA v Cougars Tavern & Ors [2008] FMCA 369
Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2009] FCA 1495
Clark v Associated Newspapers [1998] 1 All ER
Meskenas v ACP Publishing Pty Ltd [2006] FMCA 1136
Microsoft Corporation v TYN Electronics Pty Ltd (in liq) [2004] FCA 1307
PPCA & Ors v Jabouri Brothers Pty Ltd and Ors [2011] FMCA 799
Raben Footwear Pty Ltd v Polygram Records Inc & Anor (1997) 75 FCR 88
Rigby v Associated Newspapers Ltd (No 2) [1969] 1 NSWR 729
Sony Music Entertainment (Australia) Ltd & Ors v Smith & Ors [2005] FCA 228
Top Plus Pty Ltd v K Square Pty Ltd (No 3) [2010] FMCA 590
First Applicant: ARMANDO C PEREZ
Second Applicant: MR 305 INC
Third Applicant: SWEAT IT OUT PTY LTD
Respondent: JAIME FERNANDEZ
File Number: SYG33 of 2011
Judgment of: Driver FM
Hearing dates: 8 November, 14 December 2011
Delivered at: Sydney
Delivered on: 10 February 2012

REPRESENTATION

Counsel for the Applicants: Mr J Hennessy SC
Solicitors for the Applicants: Gilbert + Tobin
Counsel for the Respondent: Mr D Baran
Solicitors for the Respondent: Stephen Smart & Associates

ORDERS

  1. The applicants are relieved of any continuing obligation in respect of their undertaking noted in order 1 made by the Court on 12 April 2011.

  2. The Court declares that the respondent has infringed the copyright of the second applicant and third applicant in the Bon, Bon Sound Recording.

  3. The Court declares that the respondent has infringed the moral rights of the first applicant in the literary and musical works comprised in the Bon, Bon Song.

  4. The respondent is to pay to the second and third applicants damages in the amount of $2,312, pursuant to s.115(2) of the Copyright Act 1968 (Cth) within 28 days.

  5. The respondent is to pay to the first applicant damages in the amount of $10,000, pursuant to s.195AZA of the Copyright Act 1968 (Cth) within 28 days.

  6. Interest up to judgment is to be paid, pursuant to s.76 of the Federal Magistrates Act 1999 (Cth), from 9 December 2010, in the sums of $235.58 in respect of the damages awarded pursuant to order 4 and $1018.90 in respect of the damages awarded pursuant to order 5.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG33 of 2011

ARMANDO C PEREZ

First Applicant

MR…

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AGLC
Perez v Fernandez [2012] FMCA 2
Case
[2012] FMCA 2
Decision Date

CaseChat Overview and Summary

Perez v Fernandez was a case heard by the Federal Court of Australia, concerning a dispute over copyright and moral rights infringement. The applicants, Perez, brought claims against Fernandez, who had used Perez's copyrighted work without permission, resulting in moral and economic damage. The applicants argued that Fernandez had infringed their copyright and moral rights by using Perez's work without obtaining a licence and by altering the work to create a direct association with the artist, which the Court presumed to involve the exercise of commercially valuable rights.

The central legal issues revolved around whether Fernandez's actions constituted copyright infringement, moral rights infringement, and whether additional damages were warranted under the Copyright Act. The Court considered evidence of Fernandez's contempt for Perez's rights and his awareness of needing a licence, as well as the commercial value of the rights exercised by Fernandez. The Court also examined the moral rights protections, which were introduced to acknowledge the importance of respect for the integrity of creative endeavour and are inalienable to the author.

In its reasoning, the Court found that Fernandez had indeed infringed the copyright of the applicants by using their work without permission. It also found that Fernandez had infringed the moral rights of Perez in the literary and musical works comprised in the Bon, Bon Song. However, the Court did not find Fernandez's conduct to warrant an award of additional damages under s.115(4) of the Copyright Act, as it considered the claim for compensation for moral rights infringements to cover the same field. The Court awarded damages to the applicants under sections 115(2) and 195AZA of the Copyright Act, and ordered Fernandez to pay interest up to the date of judgment.

The Court's final orders included the declaration of copyright and moral rights infringement, the award of damages to the applicants, and the payment of interest by Fernandez. The applicants were relieved of any continuing obligation in respect of their undertaking, and Fernandez was ordered to pay the specified damages within 28 days.

Orders

Orders of the court

1.

The applicants are relieved of any continuing obligation in respect of their undertaking noted in order 1 made by the Court on 12 April 2011.

2.

The Court declares that the respondent has infringed the copyright of the second applicant and third applicant in the Bon, Bon Sound Recording.

3.

The Court declares that the respondent has infringed the moral rights of the first applicant in the literary and musical works comprised in the Bon, Bon Song.

4.

The respondent is to pay to the second and third applicants damages in the amount of $2,312, pursuant to s.115(2) of the Copyright Act 1968 (Cth) within 28 days.

5.

The respondent is to pay to the first applicant damages in the amount of $10,000, pursuant to s.195AZA of the Copyright Act 1968 (Cth) within 28 days.

6.

Interest up to judgment is to be paid, pursuant to s.76 of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

Other factors which the Court has taken into account in awarding additional damages which are relevant here include evidence of contempt for the rights of the copyright owner[36] and Mr Fernandez’s awareness that he needed a licence[37], evidenced here by Mr Fernandez’s approaches to the collecting societies. [36] see Sony Music Entertainment (Australia) Ltd & Ors v Smith & Ors [2005] FCA 228[37] see APRA v Cougars Tavern & Ors [2008] FMCA 369; Microsoft Corporation v Tyn Electronics Pty Ltd (in liq) [2004] FCA 1307 Mr Fernandez’s use involved creating a direct association between the artist and himself, through the alteration of the work, and its prominent use as the first work which streamed each time the website was visited. That use should be presumed to have involved the exercise of commercially valuable rights. The other evidence available to the Court in making an assessment comprises the confidential commercial agreements that Mr Perez has entered into with other artists to associate himself with them by way of appearances on those artist’s recordings. I am not persuaded, however, that Mr Fernandez’s conduct warrants an award of damages under s.115(4) of the Copyright Act. The conduct of Mr Fernandez most grievously impacted upon Mr Perez, who is the author of the works but not the copyright owner of the sound recordings. In the present case I take into account the claim for compensation for moral rights infringements which, in my view, covers the same field as would an award of additional damages. I accept the applicants’ legal submissions concerning moral rights. The moral rights protections in Part IX of the Copyright Act were introduced by the Copyright Amendment (Moral Rights) Act 2000 (Cth). They have independent existence from the bundle of “economic” rights protected by copyright, are inalienable to the author, and give protection to the investment of the author’s personality in his or her creation. Moral rights draw their jurisprudential force from civil law traditions and a number of international copyright and human rights conventions to which Australia is a party[38]. Further, in his Second Reading Speech introducing the relevant amendments to the Copyright Act, the then Attorney-General said:But this bill is not just about fulfilling international obligations. More importantly, it is about acknowledging the great importance of respect for the integrity of creative endeavour. At its most basic, this bill is a recognition of the importance to Australian culture of literary, artistic, musical and dramatic works and of those who create them.[38] See article 6bis of the Berne Convention, the Australia United States Free Trade Agreement (which requires compliance with Berne), the WIPO Performances and Phonograms Treaty (which extended moral rights to performers) and article 15(1) of the International Covenant on Economic, Social and Cultural Rights (which requires recognition of the rights of everyone “to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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