What you need to know
- A recent Federal Circuit Court decision serves as a good reminder that photographs are not freely available public property simply because they have been published online.
- This decision has been handed down at a similar time as Gigi Hadid, the supermodel of the moment, has been sued in the United States for copyright infringement in relation to a photograph she posted on her social media accounts.
What you need to do
- If you want to use a photograph or other material that you find on the internet, you should make enquiries as to the copyright owner and seek to negotiate a licence to allow you to use it without infringing copyright.
- If you receive a letter of demand in relation to your use of certain material, take it seriously and act promptly to take down the material and/or offer to pay a reasonable licence fee.
Recent Australian Case
In Briner v The Happy Herb Company & Ors [2017] FCCA 1854 (11 September 2017), the Respondents reproduced a photograph of a herb created by the Applicant, an American photographer, which appeared on his website. The Respondents found the photograph on the internet, reproduced it and communicated it to the public from their own website without the licence or authority of the Applicant and without attributing the photograph to him. No licence fee was paid to the Applicant.
The Court held that the Applicant’s copyright in the photograph had been infringed, and awarded the Applicant:
- damages in the form of an appropriate licence fee of AUD$500 (s 115(2) of the Copyright Act 1968 (Cth) (Copyright Act)); and
- additional damages of A$1,000 (s 115(4) of the Copyright Act). Judge Driver awarded only modest additional damages because the Respondents’ use of the photograph was only incidental to their business and was unknown to those responsible for the business until the infringement was brought to their attention. The Respondents acted promptly to remove the offending image and gave undertakings at the first opportunity following the commencement of court proceedings, avoiding the need for declarations and injunctions.
The Judge referred to the 2014 case of Tylor v Sevin [2014] FCCA 445, which involved similar facts, however the breach was more flagrant and the respondents’ conduct in the legal proceedings was subject to criticism which warranted a higher additional damages award of A$12,500. The Judge observed: “Persons downloading photographs from the internet should recognise that there may be a risk of copyright infringement and, once notified of an infringement, they should act promptly and reasonably in order to arrive at an appropriate fee as compensation for the use of the Work. The awarding of additional damages provides a deterrent against other reckless or careless use of copyright works.”
Copyright Claims in the United States
Less than a week before the Federal Circuit Court delivered this decision, a claim was filed in the US District Court by a photographer against model Gigi Hadid and her agency IMG Worldwide, claiming copyright infringement in relation to a photograph of Gigi which she posted on Instagram and Twitter. The photographer claims he had licensed the photograph to publications such as The Daily Mail for a fee, and that Gigi reproduced it from The Daily Mail website without attribution.
In a blog post, the photographer has argued that Gigi’s alleged infringement “is only the beginning of the problem”, since other major publications which would usually go through his agency and pay a fee to use the photograph simply republished the Instagram post instead.
The proceedings are still at an early stage, but it will be interesting to see how they unfold.
Authors: Marlia Saunders, Senior Associate; and Lisa Ritson, Partner.
