Rappers, moral rights and infringement

Posted by Nicole Reid ● Partner: Paul Kallenbach

Image courtesy of all that improbable blue

The Federal Magistrates Court of Australia has handed down a rare decision concerning the moral rights provisions in Part IX of the Copyright Act 1968 (Cth).  In Perez v Fernandez [2012] FMCA 2, the Court found that a performing artist's right of integrity of authorship in respect of his musical work had been infringed by the unauthorised mixing of a promotional recording into the song.

Briefly, the facts of the case were:

• Mr Armando Perez, a rapper who performs under the name 'Pitbull', was the author of a song entitled 'Bon Bon';
• Mr Jaime Fernandez, an Australian DJ and promoter, obtained from Mr Perez a promotional recording in connection with an Australian tour that was being promoted by Mr Fernandez in 2008 (which was subsequently cancelled and is the subject of separate litigation regarding alleged breaches of contract), in which Mr Perez referred to himself and Mr Fernandez; and
• Mr Fernandez used some audio editing software to mix that promotional recording into a recording of 'Bon Bon', and uploaded the edited song to his website, where it could be streamed.  He also played it in public during DJ performances.

Mr Perez argued that, by editing the song and making the edited version publicly available, Mr Fernandez had infringed Mr Perez's right under section 195AI of the Copyright Act not to have his work subjected to 'derogatory treatment'.  Derogatory treatment is defined (in section 195AJ) as including 'the doing, in relation to the work, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the work that is prejudicial to the author's honour or reputation'.

Federal Magistrate Driver found that Mr Perez's right of integrity of authorship in respect of 'Bon Bon' had been infringed.  First, His Honour accepted that the editing of the song amounted to a material distortion or alteration of the song (the changed section lasted for approximately 10 seconds).  Second, he found that the alteration was prejudicial to Mr Perez's honour or reputation on the grounds that:

• some listeners would have thought that the alteration formed part of Mr Perez's original work and so inferred a connection between Mr Perez and Mr Fernandez.  His Honour accepted that 'associations between artists and DJs in the hip-hop/rap genre are highly significant' and accordingly such a perceived connection that did not exist could be assumed to be prejudicial.  He also accepted that, even if that were not the case, Mr Perez considered the association to be prejudicial to his reputation; and
• other listeners who were more familiar with the work of Mr Perez and Mr Fernandez would have understood the connection between the two individuals and that Mr Fernandez's alteration was intended to mock Mr Perez.

It was also found that the defence of reasonableness under section 195AS was not available to relieve Mr Fernandez from liability.  In fact, His Honour noted that a number of the factors that a court is obliged to take into account in assessing reasonableness instead pointed towards the harm caused by Mr Fernandez's conduct, including the nature of the work (a rap song), the purpose for which the work was used (promotion of Mr Fernandez and mockery of Mr Perez), and the context in which the work was used (which included the existing acrimonious relationship between the two individuals).

The court awarded $10,000 in damages for the breach of Mr Perez's moral rights (in addition to $2,312 in compensatory damages that was awarded to the owners of the copyright in the recording of 'Bon Bon' for breach of copyright).  The amount was determined taking into account that the infringement had caused Mr Perez distress and prejudiced his reputation, though mitigated by the finding that it had not caused his reputation any lasting damage and that Mr Fernandez had apologised for his conduct and agreed to undertakings to partially settle the matter.

The case is significant because there have been very few cases considering moral rights since Part IX was introduced into the Copyright Act more than a decade ago.  Unfortunately, Driver FM engaged in little explicit consideration of the legal principles relevant to determining whether or not alteration of a work is prejudicial to the author's honour or reputation, most likely because limited relevant evidence appears to have been placed before the court.  Mr Perez did not appear himself, although his attorney and advisor gave evidence about the distress suffered by Mr Perez, the significance of the conduct given the importance of perceived associations in the rap world, and the fact that Mr Perez could no longer offer another artist an exclusive right to remix 'Bon Bon'.  There was no evidence from any of Mr Perez's peers about what type of conduct may have been generally considered to be prejudicial.

Given the factors taken into account by Driver FM, it appears that his approach to assessing prejudice to honour or reputation was both objective and subjective (ie, finding that Mr Perez's moral rights had been infringed both because Mr Perez felt that the conduct damaged his honour and because it was reasonable for him to have felt that way, having regard to the musical genre in which he worked and the characteristics of the rap world).  Driver FM may also have been influenced by his finding that Mr Fernandez's conduct was part of a campaign against Mr Perez arising from the failed tour and had been intended to cause harm to Mr Perez.

We await further cases for guidance as to the interpretation of moral rights protections in Australia.