Dealing with moral rights in copyright-related agreements

Moral rights are the little-known cousin to copyright – often forgotten about in dealing with transfers or licenses of copyright, or misunderstood in terms of the rights they provide to copyright authors. Spoiler alert – these are robust personal rights for copyright authors which should be addressed in any agreements that transfer or licence copyright.

What are moral rights?

Whenever copyright is created (eg. artworks, books, photos, music, film), so too are moral rights.

Moral rights are personal rights for authors of copyright observed under the Copyright Act in Australia, including the following rights:

The right of attribution – to be credited as the author of the copyright work.

The right against false attribution – to prevent authorship of the copyright work being wrongly credited to someone else.

The right of integrity – to prevent the author’s copyright work being subjected to “derogatory treatment”. This limits the level of changes or alterations which can be made to the copyright work by a third party.

These moral rights must be observed when another party performs an “attributable act” in relation to the author’s work – including when the work is reproduced, published or adapted – unless it is reasonable in the circumstances not to do so.

While copyright is an intellectual property right that can be transferred or licensed from one party to another, moral rights are personal to the author and, under the Copyright Act, cannot be transferred or waived.

Moral rights do not simply vanish when copyright ownership shifts hands from the author – those rights remain in place unless the author agrees otherwise. This creates the potential situation where the author no longer owns the copyright (ie. because they’re agreed to transfer it), but the subsequent owner can only use the copyright subject to observing the author’s moral rights. For this reason, when transferring or licensing copyright, it’s important to address the author’s moral rights in a way that’s appropriate to the transaction.

How to deal with moral rights in copyright agreements?

There is no one-size-fits-all approach with this, and will depend on the nature of the copyright-related transaction. For example, agreements that transfer or licence copyright might include terms where the author:

consents to their moral rights being infringed by the transferee or licensee (ie. allowing the copyright to be modified in any way); and

agrees to being credited as author in a specific form / placement / context specified within the agreement – in this way, crediting becomes a contractual obligation on the party taking a transfer or licence, allowing more freedom for the parties to agree on when and how crediting will occur.

In these contexts, a different approach for addressing moral rights is often taken:

In a book publishing context, an author may expect to be credited whenever their work is reproduced by the publisher to the standards required by moral rights.

In an employment context, it’s generally not expected that an employer will credit an employee who created a copyright work in the course of their job, or be prevented from modifying the employee’s work.

If a graphic designer is engaged to create a brand logo, the brand owner would typically not be required to credit the designer as the author when the logo is used.

What are the possible consequences for not observing moral rights?

Moral rights can be infringed under the Copyright Act, and the consequences of this can be significant. A court can order injunctions preventing the use of the relevant copyright work by an infringing party, a public apology to be issued for the infringement, as well as payment of damages for losses resulting from the infringement.

Moral rights infringement is rarely litigated in Australia. The issue was recently considered in the case of in McCallum v Projector Films Pty Ltd [2025] FCA 903, which concerned an application for an urgent interim injunction to halt the screening of the documentary Never Get Busted! at the 2025 Melbourne International Film Festival (MIFF). McCallum, engaged under a director’s agreement as principal director by Projector Films, was not credited as such in the film – instead, another person, Ngo, was credited as principal director.

Under the director’s agreement, McCallum agreed to “waive” his moral rights in respect of the documentary in favour of Projector Films.

Alleging that his moral rights had been infringed, McCallum sought to urgently halt the documentary screening at MIFF with credits naming Ngo as principal director. Projector Films argued that Ngo was in fact the principal director, as McCallum’s role had changed during production, so there was no infringement. The Court found there was a serious question to be tried on McCallum’s moral rights claims and ordered that the film could not be screened or promoted at MIFF unless McCallum was listed as a director and Ngo was not.

This outcome (albeit for an interim injunction and not a fully-tried case) demonstrates the strength of moral rights as personal legal rights, and how they can be used to restrain the reproduction or public presentation of creative works unless the requirements for observing those rights under the Copyright Act are met. It also underscores the importance of securing the author’s written consent to infringement of moral rights (rather than relying on a waiver) if suitable in the circumstances.

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