Most designers know about copyright. Fewer know about moral rights, which sit beside copyright and work quite differently. They protect the person who made a work, not the person who owns it. That difference matters every time a logo, photo or illustration changes hands.
This guide explains what moral rights are in Australia and who holds them. It also covers how consent works and what can happen when the rights are ignored. It is written for designers, photographers, writers and the businesses that commission them.
What moral rights are
Moral rights have been part of Australian law for more than two decades. They live in Part IX of the Copyright Act 1968, which is a Commonwealth law. The Law Handbook from the Legal Services Commission of South Australia describes them as personal and inalienable. In plain terms, they belong to the creator and cannot be sold to anyone else.
A creator can still use these rights even when someone else owns the copyright. So a designer who hands over copyright in a logo still holds moral rights in that logo. The client can own the artwork outright and still be bound by them. Many people are caught out by this point.
The three moral rights
The Copyright Act sets out three separate rights. Each one covers a different kind of harm to the creator. They are listed below in the order the Act deals with them.
- The right of attribution. The creator has the right to be named when the work is reproduced, published, exhibited or communicated to the public.
- The right against false attribution. Nobody may put another person’s name on a work in a way that falsely suggests that person made it.
- The right of integrity. The work must not be distorted, mutilated or materially altered in a way that is prejudicial to the creator’s honour or reputation.
The integrity right is the one designers ask about most. Changing a work is not enough on its own to breach it. A university copy of the Australian Copyright Council fact sheet says courts would likely look for objective harm to reputation. Hurt feelings alone are unlikely to be enough.
Who holds moral rights
Only individual creators have moral rights. A company cannot hold them, even if it paid for the work. The rights cover literary, dramatic, musical and artistic works, which include photographs and architecture. Computer programs and films are covered as well.
Films have their own rules. The principal director and principal screenwriter hold moral rights in a film. The principal producer also holds them, but only if the producer is a natural person rather than a company. Performers on sound recordings have moral rights too, and that includes conductors.
How long moral rights last
The rights of attribution and false attribution last as long as copyright does. For most works that is the life of the creator plus 70 years. The integrity right also lasts as long as copyright, with one exception. For films, each creator’s integrity right ends when that creator dies.
After a creator dies, their legal personal representative looks after the rights. This can matter for brands that keep using older artwork for decades. It can also matter for a business that reissues archival photos. The creator’s estate may still have a say in how the work is credited and treated.
Consent and the reasonableness defence
Moral rights cannot be assigned or sold. A creator can, however, consent to particular uses of the work. Consent not to be named must be given in writing. So must consent to treatment that would otherwise breach the integrity right.
The scope of consent depends on who made the work. Employees can give broad consent that covers work made as part of their job. Film creators can also give very broad consent. Other creators, such as freelancers, cannot give wide consent that covers everything in advance.
There is also a defence when a failure to credit or a change to the work was reasonable. Factors include the nature of the work and the purpose, manner and context of its use. Industry practice counts too, along with whether the work was made under an employment contract. There is no reasonableness defence for false attribution, though.
What this means for design commissions
A business that commissions creative work often needs two things. It needs permission from the copyright owner and, for some uses, consent from the creator. These are not always the same person. A clear written agreement deals with both before the work starts.
Think about how the work will be used over time. A logo may be recoloured, cropped or simplified for an app icon. A photo may be cropped for social media or placed beside other content. Brand storytelling often reuses the same images across many channels. Our post on online branding using storytelling looks at that kind of brand work.
The same thinking applies to product photos and graphics on a website. If you run a shop on a platform like the ones in our guide on WordPress for online store owners, check the credit terms for every image. Some photographers expect a credit line near their work. Others agree in writing that no credit is needed.
Credits belong on web pages as much as in print. A page that names its photographer or illustrator is simply being accurate. If you are working through the basics of search engine optimisation for your site, add image credits to the same checklist as page titles. Clear credits also save awkward conversations later.
What happens if moral rights are infringed
A creator whose moral rights are infringed can take the matter to court. The court can award damages or grant an injunction. It can also make a declaration that a moral right was infringed or order a public apology. It may order that a false attribution be removed or that a derogatory treatment be reversed.
Courts look at what the other side did to reduce the harm. Before granting an injunction, a court must consider adjourning so the parties can try to settle. People who commercially deal with material that infringes moral rights may also infringe. That can include a business selling or displaying the work.
The court remedies above show what is at stake for a business. A written agreement that deals with credits and consent at the start of a commission can head off many of these issues. Dealing with a credit or consent issue early is usually simpler than a dispute.
Frequently asked questions
Can I buy the moral rights in a logo I paid for?
No. Moral rights cannot be assigned, sold or transferred. You can buy the copyright, and the designer can give written consent to particular uses. That consent is what lets you change or use the work without a credit.
Do moral rights apply to work my staff create?
Yes, individual employees hold moral rights in work they create. Employees can give broad written consent covering work made in the course of their employment. Many employers deal with this in employment agreements.
Is editing a photo a breach of the integrity right?
Not automatically. The change must be prejudicial to the creator’s honour or reputation. A reasonableness defence may also apply, depending on the context and industry practice.
Do moral rights work the same way in every state?
Moral rights come from Commonwealth law, so the Act itself applies across Australia. Court processes and related state laws can differ, and the rules can change over time. The moral rights fact sheet hosted by the University of Newcastle recommends legal advice for specific situations.
This article is general information only and is not legal advice. Laws and processes can differ between states and change over time. Please speak with a qualified lawyer about your own situation.