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Published online by Cambridge University Press: 01 January 2025
Can the honour of the dead be prejudiced? There is much philosophical debate about whether the dead can, or should, enjoy legal rights. Australia, like many jurisdictions, has apparently bypassed that debate and confers post-mortem moral rights on authors, which endure for at least 70 years after an author's death. The Australian moral right of integrity protects authors from certain conduct in relation to their copyright works, which is prejudicial to their honour or reputation. This deliberate conferral of a posthumous right ostensibly acknowledges that a deceased author's honour can be harmed. This article examines questions surrounding the apparent conundrum of posthumous prejudice to an author's honour. How can prejudice to the honour of the dead be established in the absence of the author, particularly if honour is interpreted subjectively? Do insuperable evidentiary hurdles render the posthumous honour limb of the moral right of integrity illusory? The article concentrates on Australian law, but engages in relevant comparative treatments, particularly with French, Canadian and United Kingdom law. Judicial consideration of moral rights under the common law is scant, particularly in Australia, and rarer still in a post-mortem context. However, the issues explored in the article are important, will inevitably arise for consideration and merit a comprehensive examination.
1 Crisp, Roger (ed), Aristotle: Nicomachian Ethics (Cambridge University Press, 2000) 16–7Google Scholar, cited in Smolensky, Kirsten Rabe, ‘Rights of the Dead’ (2009) 37 Hoftsra Law Review 763, 770.Google Scholar
2 Goldie Blox, About Goldie Blox, <http://www.goldieblox.com/pages/about>.
3 The pertinent lyrics are: ‘Girls — to do the dishes; Girls — to clean up my room; Girls — to do the laundry’.
4 Including: ‘Girls, you think you know what we want, Girls! Just like the 50s its girls;
Girls build a spaceship
Girls code the new app
Girls that grow up knowing
That they can engineer that’. The original video can still be seen at Katy Waldman, This Awesome Ad, Set to the Beastie Boys, Is How to Get Girls to Become Engineers (19 November 2013) Slate <http://www.slate.com/blogs/xx_factor/2013/11/19/goldieblox_commercial_rewrites_the_beastie_boys_urges_young_girls_to_pursue.html>.
5 Victoria Slind-Flor, Goldie Blox Takes Down Parody Video, Will Dismiss Copyright Case (2 December 2013) Bloomberg <http://www.bloomberg.com/news/2013-12-02/fujitsu-ecosphere-goldieblox-intellectual-property.html>.
6 Goldieblox Inc v Island Def Jam Music Group Case 3:13-cv-05428 (filed 21 November 2013) <http://www.scribd.com/doc/186402972/Beastie>.
7 Dave Itzkoff, Beastie Boys Fight Online Video Parody of “Girls” (25 November 2013) New York Times <http://artsbeat.blogs.nytimes.com/2013/11/25/the-beastie-boys-fight-online-video-parody-of-girls/?smid=tw-share&_r=2>.
8 See Goldie Blox, Our Letter to the Beastie Boys (27 November 2013) <http://blog.goldieblox.com/2013/11/our-letter-to-the-beastie-boys/>.
9 No doubt the fact that Goldie Blox had already received incalculably valuable free publicity, and the legal uncertainty of any fair use contest, were serious factors influencing the capitulation.
10 The only moral rights conferred in the United States are those in respect of visual art. See Visual Artists Rights Act of 1990, 17 USC § 106A (2006 & Supp 5).
11 Copyright Act 1968 (Cth) (‘the Act’) s 195AM(2). The exceptions are an author's right of integrity in respect of a film (Copyright Act 1968 (Cth) s 195AM(1)) and performer's right of integrity in respect of a recorded performance (Copyright Act 1968 (Cth) s 195AM(3)), which rights cease on the author/performer's death. All further references to sections number are references to the Act unless otherwise stated.
12 The numerous issues that arise in respect of the author's LPR are explored in a separate forthcoming article by the author.
13 In respect of films, the author is defined as the principal director, the principal producer and the principal screenwriter. Films (ordinarily Part IV subject matter) are defined as ‘works’ for the purposes of Part IX of the Copyright Act 1968 (Cth).
14 With regard to live performances and recorded live performances so far as the performance consists of sounds, see Copyright Act 1968 (Cth) ss 189, 248A.
15 Copyright Act 1968 (Cth) s 195AN(1).
16 Ibid ss 193(1), 195ABA(1).
17 In the manner set out in ss 195–195AB; 195ABC–195ABE.
18 Ibid ss 193(2), 195ABA(2).
19 Ibid ss 194, 195ABB.
20 Ibid ss 195AC(1), 195AHA(1).
21 Ibid ss195A-H, 195AHB-C.
22 Ibid ss 195AJ(a) (works), 195AK (artistic works), 195AL (films), 195ALB (performances).
23 Ibid ss 195AJ(b), 195ALB.
24 Ibid s 195AQ(2).
25 Ibid s 33(2).
26 Ibid s 32(3).
27 Commonwealth, Parliamentary Debates, House of Representatives, 8 December 1999, 13026 (Daryl Williams). See also Banks, Cate, ‘Lost in Translation: a History of Moral Rights in Australian Law 1928 — 2000 (Part 1)’ (2007) 11 Legal History 197, 222Google Scholar; Banks, Cate, ‘Lost in Translation: a History of Moral Rights in Australian Law 1928 — 2000 (Part 2)’ (2008) 12 Legal History 99, 103.Google Scholar
28 Berne Convention for the Protection of Literary and Artistic Works, 828 UNTS 221 (entered into force 9 September 1886) art 6bis(2) (‘Berne Convention’) provides that ‘Countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained’.
29 Ibid.
30 Developments of note were the Copyright Law Review Committee, Report on Moral Rights (1988); Department of Communications and the Arts, ‘Proposed Moral Rights Legislation for Copyright Creators’ (Discussion Paper no 52, Attorney-General's Department, 1994); exposure draft Copyright Amendment Bill 1996 (Cth); Copyright Amendment Bill 1997 (Cth); Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Consideration of Legislation Referred to the Committee, Copyright Amendment Bill 1997 (October 1997), and finally the Copyright Amendment (Moral Rights) Bill 1999 (Cth).
31 See Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Consideration of Legislation Referred to the Committee, Copyright Amendment Bill 1997 (October 1997) [2.98].
32 See Copyright Amendment (Moral Rights) Bill 1999 (Cth) s 195AM(1).
33 Commonwealth, Parliamentary Debates, House of Representatives, 31 October 2000, 21717 (Daryl Williams).
34 Ibid 21714.
35 Ibid 21717.
36 Copyright Act 1968 (Cth) s 195AZA(1)(a).
37 Ibid s 195AZA(1)(b).
38 Ibid s 195AZA(1)(c).
39 Ibid s 195AZA(1)(d).
40 Ibid s 195AZA(1)(e).
41 Ibid s 195AZA(2).
42 Ibid ss 195AJ (literary, dramatic or musical works), 195AK (artistic works), 195AL (films), 195ALB (performances).
43 Adeney, Elizabeth, The Moral Rights of Authors and Performers: an International and Comparative Analysis (Oxford University Press, 2006) [18.58]–[18.60]CrossRefGoogle Scholar; Adeney, Elizabeth, ‘The Moral Right of Integrity: The Past and Future of “Honour”’ (2005) 2 Intellectual Property Quarterly 111, 129Google Scholar; Adeney, Elizabeth, ‘The Moral Right Of Integrity Of Authorship: A Comparative View Of Australia's Proposals To Date’ (1998) 9 Australian Intellectual Property Journal 179, 188–9.Google Scholar
44 Lim, Dennis, ‘Prejudice to Honour or Reputation in Copyright Law’ (2007) 33 Monash University Law Review 290, 293.Google Scholar
45 See Perez v Fernandez [2012] FMCA 2 (10 February 2012) [97] (‘Perez’), although Driver FM clearly considered that prejudice had been established, finding that Mr Perez's reputation did not suffer any ‘lasting damage’: at [107]; in Prise de Parole Inc v Guérin, Éditeur Ltée (1995) 66 CPR (3rd) 258 (Federal Court of Canada), 265, the Court held that the right of integrity ‘does not require the plaintiff to prove prejudice to his honour or reputation’, suggesting that actual harm need not be demonstrated; Lim, ibid 293; and Adeney, ‘The Moral Right of Integrity: The Past and Future of “Honour”’ above n 43, 129. For the contrary view that the fact of having been prejudiced may need to be established, see McCutcheon, Jani, ‘Perez v Fernandez — Australia's First Decision on the Moral Right of Integrity’ (2013) 23(3) Australian Intellectual Property Journal 174.Google Scholar
46 Perez [2012] FMCA 2 (10 February 2012) [60], [95]–[96]. Support for this can also be found in Weiss v Prentice Hall Canada Inc (1995) 66 CPR (3rd) 417 (Ontario Court (General Division)) [30]. This is also consistent with defamation law: see, eg, Cerutti v Crestside Pty Ltd [2014] QCA 33 (28 February 2014) and the cases cited therein.
47 See, eg, Loughlan, Patricia, ‘The Right of Integrity: What is in That Word Honour? What is in That Word Reputation’ (2001) 12 Australian Intellectual Property Journal 189Google Scholar; Lim, above n 44; Adeney, ‘The Moral Right of Integrity: The Past and Future of “Honour”’, above n 43; Adeney, Moral Rights, above n 43, [18.65].
48 See the examples discussed in Lim, above n 44, 297; Harrison v Harrison [2010] 25 FSR 604, and the case law discussed further below.
49 See Lim, above n 44, 293–4; Adeney, ‘The Moral Right of Integrity of Authorship: A Comparative View’, above n 43, 188.
50 Honour can be used as a verb (we generally try and ‘honour the wishes of the dead’), or a noun (‘a woman's honour is all that she has’), however these meanings are not pursued in this article, given their peripheral relevance to the moral right of integrity.
51 See, eg, the discussion in Lim, above n 44, 295-7 and Loughlan, above n 47, 191.
52 Department of Communications and the Arts, above n 30, 45 [3.49].
53 Bujold, Lois McMaster, A Civil Campaign (Baen, 1999) 293.Google Scholar
54 Joseph Addison, Cato: A Tragedy (1713) Act IV Scene 4.
55 Ricketson, Staniforth and Creswell, Christopher, The Law of Intellectual Property: Copyright, Designs & Confidential Information (Thomson Reuters, 1984) vol 1 [10.110].Google Scholar
56 See, eg, Adeney, ‘The Moral Right of Integrity: The Past and Future of “Honour”’, above n 43, 125–6. See Loughlan, above n 47, 191, for the contrary view that honour should be determined exclusively by reference to an objective standard.
57 See the dictionary definitions of honour discussed in Lim, above n 44, 295, and Loughlan, above n 47, 191 n 8.
58 See Snow v Eaton Shopping Centre Ltd (1982) 70 CPR (2nd) 105 (Ontario High Court) (‘Snow’) discussed further below.
59 This and other examples of improved reputation, which may nevertheless result in harm to honour, can be found in Loughlan, above n 47, 190–1, and Lim, above n 44, 294.
60 Boudreau v Lin (1997) 75 CPR (3rd) 1 (Ontario Court (General Division)), 14.
61 Presumably the court considered the breach obvious. See Lim, above n 44, 304. Presumably, prejudice should be able to be inferred in obvious cases, for example, a graphic pornographic alteration of a famous children's drawing.
62 Boudreau v Lin (1997) 75 CPR (3rd) 1 (Ontario Court (General Division)), 14 (emphasis added).
63 See the examples of infringement of the French moral right of integrity in Adeney, Moral Rights, above n 43, [8.73], [8.80], [8.82].
64 Prise de parole Inc v Guérin, éditeur Ltée (1995) 66 CPR (3rd) 258 (Federal Court of Canada), 265 (emphasis added).
65 Assuming a reputational lacuna.
66 Fuensanta v Antena 3 TV SA [2001] ECDR 23 [26] (emphasis added).
67 Kwall, Roberta, The Soul Of Creativity: Forging a Moral Rights Law For the United States (Stanford University Press, 2009) 160.Google Scholar
68 In particular, harm to reputation may not require any evidence concerning the author's meaning or message. It may simply require some objective assessment as to whether the defendant's conduct has harmed the author's reputation.
69 Note s 195AK(b) of the Act, which provides that derogatory treatment of an artistic work includes ‘an exhibition in public of the work that is prejudicial to the author's honour or reputation because of the manner or place in which the exhibition occurs’. Although, even here it could be argued that this corrupts the message of ‘superiority’ inherent in the author's work.
70 See Lim, above n 44, 321, noting that if an author is personally unable to give evidence, for example, because he or she is dead, and there is no alternative source of evidence of the author's subjective response, the only alternative would be an infringement action based on prejudice to the author's reputation.
71 Intellectual Property Code (France) art L 121–1.
72 Adeney, Moral Rights, above n 43, [8.63].
73 Logeais, Elisabeth, ‘Post-Mortem Exercise of Copyright in French Law: Old Debates, New Issues’ (1991) 2(6) Entertainment Law Review 185, 186Google Scholar, citing Desbois, Henri, Le Droit d'auteur en France (Dalloz, 3rd ed, 1978) [466], [569].Google Scholar
74 See Nerisson, Sylvie, ‘Perpetual Moral Rights: a Troubling Justification for a Fair Result’ (2005) 36(8) International Review of Intellectual Property and Competition Law 953, 953-4Google Scholar, citing Hugo v Plon, Cour d’appel de Paris [Paris Court of Appeal], 2003/06582, 31 March 2004 reported in [2005] ECDR 27.
75 Tribunal de Grande Instance de Paris 3rd Ch [3rd Chamber of the Paris Grand Instance Court], Jerome London et SACD v La Compagne Brut de Béton, 15 October 1992 reported in RIDA 225 (January 1993), cited in Davies, Gillian and Garnett, Kevin, Moral Rights (Thomson Reuters, 2010) [12-012].Google Scholar
76 Copyright Act (Greece) art 12(2).
77 See also Adeney, ‘The Moral Right of Integrity: The Past and Future of “Honour”’, above n 43, 127, arguing that the wording of art 6bis of the Berne Convention suggests evidence of subjective response is unnecessary to a finding of infringement because the critical issue is whether the defendant's actions have the propensity to harm honour.
78 Adeney, ‘The Moral Right of Integrity of Authorship: A Comparative View’, above n 43, 189.
79 Logeais, above n 73, 185.
80 Roeder, Martin A, ‘The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators’ (1940) 53 Harvard Law Review 554, 575.CrossRefGoogle Scholar
81 Commonwealth, Parliamentary Debates, House of Representatives, 8 December 1999, 13026 (Daryl Williams). See also Banks, ‘Lost in Translation (Part One)’, above n 27, 222 and Banks, ‘Lost in Translation (Part Two)’, above n 27, 103.
82 Commonwealth, Parliamentary Debates, House of Representatives, 8 December 1999, 13026 (Daryl Williams).
83 Ibid.
84 Ibid.
85 Moral rights historically derive from the ‘belief that an artist, in the process of creation, injects some of his or her spirit into the art and that, consequently, the artist's personality, as well as the integrity of the work, should be protected and preserved’: Stern, Cambra E, ‘A Matter of Life or Death: The Visual Artists Rights Act and the Problem of Postmortem Moral Rights’ (2004) 51 UCLA Law Review 849, 853Google Scholar, quoting Lerner, Ralph E and Bresler, Judith, Art Law: The Guide for Collectors, Investors, Dealers, and Artists (Practising Law Institute, 2nd ed, 1998) 943.Google Scholar
86 It is generally accepted that, in assessing injury to ‘honour’, a purely subjective assessment of honour is undesirable since it would give considerable power to a perhaps hypersensitive author to restrain reasonable uses. See, eg, Lim, above n 44, 309-10; Adeney, ‘The Moral Right of Integrity: The Past and Future of “Honour”’ above n 43, 126, 129; Adeney, Moral Rights, above n 43, [18.65]; Bird, Robert C, ‘Of Geese, Ribbons, And Creative Destruction: Moral Rights And Its Consequences’ (2011) 90 Texas Law Review 63, 68Google Scholar; Baumgarten, Jon A, ‘On the Case Against Moral Rights’ in Anderson, Peter and Saunders, David (eds), Moral Rights Protection in a Copyright System (Griffith University, 1992) 87, 88.Google Scholar
87 Copyright Act 1968 (Cth) s 195AS(1).
88 Or the propensity for prejudice.
89 Smolensky, above n 1, 772.
90 In comparison to the situation in France, discussed further below.
91 In all, there were three substantive decisions in the Hugo v Plon litigation: commencing with Hugo v Plon, Cour d’appel de Paris [Paris Court of Appeal], 2003/06582, 31 March 2004 reported in [2005] ECDR 27; then Plon SA v Hugo, Cour de cassation [French Court of Cassation], 30 January 2007 reported in [2007] ECDR 9; and ending with La Société des gens de lettres de France v SA Les Éditions Plon, Cour d’appel de Paris [Paris Court of Appeal], 07/05821, 19 December 2008 reported in (2009) 40 International Review of Intellectual Property and Competition Law 979.
92 La Société des gens de lettres de France v SA Les Éditions Plon, Cour d’appel de Paris [Paris Court of Appeal], 07/05821, 19 December 2008 reported in (2009) 40 International Review of Intellectual Property and Competition Law, 979, 982.
93 Hugo v Plon, Cour d’appel de Paris [Paris Court of Appeal], 2003/06582, 31 March 2004 reported in [2005] EDCR 27 [30].
94 Ibid [31].
95 Ibid [32].
96 La Société des gens de lettres de France v SA Les Éditions Plon, Cour d’appel de Paris [Paris Court of Appeal], 07/05821, 19 December 2008 reported in (2009) 40 International Review of Intellectual Property and Competition Law 979, 980–1.
97 Hugo v Plon, Cour d’appel de Paris [Paris Court of Appeal], 2003/06582, 31 March 2004 reported in [2005] EDCR 27 [35]. While it was not entirely clear what aspect of the ‘ending’ Victor Hugo was referring to, the applicants argued that this expressed Hugo's desire to retain the ending as it stood (and with the characters who had died remaining dead).
98 Ibid [36].
99 Ibid [37].
100 Ibid [35].
101 C Caron, ‘Communication Commerce Électronique’ 27 (May 2004), cited in Nerisson, above n 74, 957.
102 Nerisson, above n 74, 957.
103 Plon SA v Hugo, Cour de cassation [French Court of Cassation], 20 January 2007 reported in [2007] ECDR 9 [9].
104 Ibid.
105 La Société des gens de lettres de France v SA Les Éditions Plon, Cour d’appel de Paris [Paris Court of Appeal], 07/05821, 19 December 2008 reported in (2009) 40 International Review of Intellectual Property and Competition Law 979, 980.
106 Ibid.
107 Ibid 980–1.
108 Ibid.
109 Turner Entertainment Co v Huston, Cour d’appel de Versailles [Versailles Court of Appeal], 19 December 1994 reported in (1995) 16(10) Entertainment Law Reporter 3, Pt III [10].
110 Ibid Pt II [2].
111 Ibid Pt III [9].
112 TGI Paris, 3e ch., 15 Oct. 1992: RIDA 1/1993, 225.
113 Davies and Garnett, above n 75, 14-034.
114 Interview with Paul Lombard (6 March 2012).
115 Henry Lydiate, ‘Posthumous Legal and Ethical Issues’ (2007) 8 Tate Papers <http://www.tate.org.uk/research/publications/tate-papers/posthumous-legal-and-ethical-issues>.
116 Roeder, above n 80, 557.
117 Brian A Lee, ‘Making Sense of “Moral Rights”: Artists’ European Style Intellectual Property Protections Within the American System’ (22 April 2007) Yale Law School Legal Scholarship Repository Student Prize Papers, 30 <http://digitalcommons.law.yale.edu/ylsspps_papers/15>.
118 Or at least a copy of it will be.
119 An approach with some support in the US. See, eg, Massachusetts Museum of Contemporary Art Foundation, Inc v Buchel 593 F 3d 38, 54 [41] (1st Cir, 2010), where the US Court of Appeals for the First Circuit noted that the House Report pertaining to the Visual Artists Rights Act ‘recommended that the prejudice inquiry “focus on the artistic or professional honor or reputation of the individual as embodied in the work that is protected”: quoting HR Rep No 101-514 (1990), reprinted in 1990 U.S.C.C.A.N. 6925-6 (emphasis added). The appellate court also approved of the district court's conclusion in Carter v Helmsley-Spear, Inc that the court should ‘consider whether [the proposed] alteration would cause injury or damage to the plaintiff's good name, public esteem, or reputation in the artistic community’: Massachusetts Museum of Contemporary Art Foundation, Inc v Buchel 593 F 3d 38, 54 [42] (1st Cir, 2010), quoting Carter v Helmsley-Spear, Inc 861 F Supp 303, 323 (SD NY 1994).
120 See, eg, Loughlan, above n 47; Lim, above n 44; Adeney, ‘The Moral Right of Integrity: The Past and Future of “Honour”’, above n 43; Adeney, Moral Rights, above n 43, [18.65].
121 [2010] FSR 25 (‘Harrison’).
122 Ibid [64] (emphasis in original) (citations omitted).
123 Despite referring to both honour or reputation, the court states that ‘this’ (singular rather than ‘these’ plural) is ‘not easy to assess’ and regards the evidence on ‘this’ (singular) matter being insufficient.: ibid [64].
124 (1982) 70 CPR (2nd) 105 (Ontario Court (General Division)).
125 Ibid 106 [5].
126 Ibid 106 [6].
127 (1995) 66 CPR (3rd) 257 (Federal Court of Canada).
128 Ibid 266.
129 Ibid (emphasis added).
130 (2003) 27 CPR (4th) 220 (Ontario Supreme Court).
131 Ibid [51].
132 Ibid [52].
133 (1995) 39 IPR 501 (‘Tidy’).
134 Ibid 504.
135 [1999] FSR 168.
136 Ibid 182.
137 Adeney, ‘The Moral Right of Integrity of Authorship: A Comparative View’, above n 43, 188.
138 Adeney, ‘The Moral Right of Integrity: the Past and Future of “Honour”’ above n 43, 129.
139 See, eg, Loughlan, above n 47; Lim, above n 44; Adeney, ‘The Moral Right of Integrity: The Past and Future of “Honour”’, above n 43, 129; Adeney, Moral Rights, above n 43, [18.65].
140 Lim, above n 44, 305.
141 Ibid.
142 Tidy (1995) 39 IPR 501.
143 Ritchie v Sawmill Creek Golf & Country Club Ltd (2003) 27 CPR (4th) 220 (Ontario Supreme Court).
144 Snow (1982) 70 CPR (2d) 105, 106
145 Ibid.
146 Ibid.
147 Ibid.
148 Prise de parole Inc v Guérin, éditeur Ltée (1995) 66 CPR (3rd) 258, 265 (emphasis added).
149 Ibid.
150 (2003) 27 CPR (4th) 220 (Ontario Supreme Court).
151 Ibid [49].
152 Tidy (1995) 39 IPR 501, 504.
153 Ibid.
154 [2010] FSR. 25.
155 Ibid [64].
156 Ibid [64].
157 Ibid [66] (emphases added).
158 Pia Pera, ‘A Moral Critique of Lolita in the Form of a Nabokovian Prank’, unpublished afterword for the US publication of Lo's Diary. Pera decided not to publish the afterword after it was, in Pera's view, disclosed to Dimitri Nabakov contrary to their agreed settlement: interview with Pia Pera (13 April 2012).
159 Adeney, Moral Rights, above n 43, [18.65].
160 Ibid. See also Adeney, ‘The Moral Right of Integrity: the Past and Future of “Honour”’, above n 43, 127.
161 Adeney, ‘The Moral Right of Integrity: the Past and Future of “Honour”’, above n 43, 129.
162 Davies and Garnett, above n 75, [12-011]; La Société des gens de lettres de France v SA Les Éditions Plon, Cour d’appel de Paris [Paris Court of Appeal], 07/05821, 19 December 2008 reported in (2009) 40 International Review of Intellectual Property and Competition Law 979, 981.
163 Adeney, ‘The Moral Right of Integrity: the Past and Future of “Honour”’, above n 43, 129 (emphasis added).
164 See, eg, Davies and Garnett, above n 75, [12-012]; Maxwell, Winston, ‘Moral Rights Clauses after Barbelivien’ (2004) 15(4) Entertainment Law Review 121, 122Google Scholar: ‘Normally, the right to integrity permits the author to object to any change in his or her work. The judge is not supposed to second-guess the author's judgment. If the author objects to a given modification, that is sufficient in itself to constitute a moral rights violation, whether or not the author's position might be considered reasonable’ (emphasis in original).
165 (1996) 71 FCR 37 (Tamberlin J) (‘Schott Musik’), affd (1997) 75 FCR 321 (Wilcox, Hill and Lindgren JJ) (‘Schott Musik appeal’).
166 Section 55(2) provided that the compulsory licensing provisions of s 55(1) did not apply in relation to a record of an adaptation of a musical work if the adaptation ‘debases’ the work.
167 Schott Musik (1996) 71 FCR 37, 42.
168 Ibid.
169 Ibid 44.
170 Ibid.
171 Ibid.
172 Schott Musik appeal (1997) 75 FCR 321, 332.
173 Ibid 333.
174 Ibid 337.
175 Ibid 324.
176 Ibid.
177 Tidy (1995) 39 IPR 501.
178 Tidy argued that the reduction in size resulted in details becoming imperceptible and the captions becoming difficult to read, suggesting that he could not be bothered to redraw the cartoons in a suitable format for the book.
179 Tidy (1995) 39 IPR 501, 504.
180 [1999] FSR 168.
181 Ibid 182.
182 Ibid.
183 [2003] EWCh 1274 (Ch) (23 May 2003).
184 Which, in the words of the court, ‘led to the faintly surreal experience of three gentlemen in horsehair wigs examining the meaning of such phrases as ‘mish mish man’ and ‘shizzle (or sizzle) my nizzle’: ibid [151].
185 Perez [2012] FMCA 2 (10 February 2012), which also dealt with a modification of a rap song.
186 Confetti Records v Warner Music UK Ltd [2003] EWCh 1274 (Ch) (23 May 2003) [157] (emphasis added).
187 Ibid.
188 Ibid [154].
189 Ibid [156].
190 Ibid.
191 Ibid [158].
192 Ibid.
193 Perez [2012] FMCA 2 (10 February 2012).
194 Which translates as ‘heh, heh, heh, heh, heh, see that you're rich’.
195 Perez [2012] FMCA 2 (10 February 2012) [86]. The court made a similar comment earlier in the judgment: ‘I accept … that the rap/hip hop genre is one in which an artist's commercial and artistic associations really matter. Success in building a reputation, developing a fan base, selling records, attracting people to concerts, and ultimately entering into lucrative commercial sponsorships and endorsements depends in large measure on the other artists and brands the artist is seen to associate with. It is also a genre which has been closely linked to ‘DJ-ing’. Association between artists and DJs continue to play an important role in promoting and building audiences for rap/hip hop music’: at [68].
196 Ibid [88].
197 Ibid [98] (emphases added).
198 Section 195AS(1).
199 See the cases discussed in Nimmer, Melville B and Geller, Paul Edward (eds), International Copyright Law and Practice (Matthew Bender, 1993)Google Scholar §7(1)(d), §7(3).