02.04.19 / Moral Rights - Retaining and Maintaining a Connection to Your Creative Output

Moral rights are often confused with copyright, the latter being something that designers are often asked to “give away” — either because of the contract they have with clients, or because they’re employees (by force of the Copyright Act 1968 (Cth) [Act] all works created in the course of employment automatically are owned by the employer).

Moral rights are quite different from copyright, although they are governed by the Act.

What are Moral Rights?
Firstly, they are personal, and cannot be owned by a business or a company. A mere transfer of copyright (we call the transfer an “assignment”) does not necessarily mean that your moral rights are forgone.

There are three types of moral rights:
• The right of attribution — as creator, if any attribution is possible on a particular design, you have the right to be so named;
• The right to stop false attribution - in other words, to stop others attributing your work as their own; and
• The right of integrity — to stop your work being treated in such a way that it could harm your fame or reputation.

The above rights apply, whether you own, or still own, copyright in the work in question. The hardest right to deal with is that of integrity, a defence to breaching which can be that the party in question was acting reasonably in all the circumstances in, say, changing or transforming the work. What is “reasonable” is usually assessed by considering the nature of the work, its purpose and current industry practices (we could devote a whole article to this sub-topic alone!).

Are Moral Rights valuable?
Moral rights, per se, are not economic rights, but they are still valuable in that, as the creator of a work, a third party may well need your consent to the way it is being modified (even in instances where the copyright in the work has been assigned). It is the maintenance of a connection with your work through moral rights that may prove valuable as time goes on.

Can I be asked to waive my Moral Rights?
Moral rights cannot be waived in the strict sense (the Act does not allow for this), but you can allow them to be infringed. It is always important when considering just what you are giving away when you assign copyright (or automatically assign it in the case of employment) to ensure that any agreement (or employment contract) deals with moral rights.

How can I publicise my work?
Whether you are dealing with a client or an employer, it is important, if possible, to retain for yourself the right to use the work you create as part of your self-promotional portfolio.

Many contracts we have seen tried to prohibit this, but we always advise our clients that they should have the right to self-promote. Self-promotion is not an inherent moral right, and, without permission, if you no longer own the copyright in a work, it is not possible to use it in any fashion for your personal purposes without the permission of the copyright owner.

We can help
As AGDA’s lawyers since its inception, we are always ready to help AGDA members understand their Intellectual Property rights, to review the specific terms of any contracts, or to assist in drafting clauses that can be used to ensure designers keep control of their work. For more information, email us at mail@finns.com.au or give us a call on (02) 8297 1100 for a free initial consultation.

This article does not constitute legal advice, and is not intended to provide a comprehensive statement of the topics discussed within it. The article does not create a solicitor-client relationship between you and Finn Roache Lawyers and you should seek legal and/or other professional advice before acting or relying upon any matter or thing contained in this article.

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Kate Samolej
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