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
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.
The Court declares that the respondent has infringed the copyright of the second applicant and third applicant in the Bon, Bon Sound Recording.
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.
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.
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.
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
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
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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