Perez v Fernandez

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.