Corby v Allen & Unwin Pty Ltd [2013] FCA 370
The Federal Court case of Corby v Allen & Unwin Pty Ltd (“Corby case”) illustrates the risks associated with not taking adequate steps to ascertain the copyright ownership in photographs and not obtaining permission or licences from the copyright owner.
The Corby case involved a copyright infringement claim by the sister (Mercedes Corby), brother (Michael Corby) and mother (Roseleigh Rose) of Schapelle Corby, in respect of 5 photographs published by Allen & Unwin in the book titled “Sins of the Father” (“the book”). The book was about Schapelle Corby’s arrest and imprisonment in Bali, and was authored by Eamonn Duff (“Duff”), a senior journalist under commission by Allen & Unwin. Duff was not a party to the court proceeding. His contractual arrangement with Allen & Unwin required him to gather photographs for the book, but it was the publisher’s responsibility to decide what photographs would be reproduced in the book (1). There were a total of 37 photographs in the book, 5 of which were the subject of the copyright infringement claim. The book was published in November 2011 and by 27 March 2013, over 44,000 copies of the book had been sold at a price of $35.00 a copy (2).
The publisher argued that it had an express or implied licence or permission to reproduce the photographs because at some earlier point in time the copyright owners had given permission to a third party to use the photographs for a purpose unrelated to the publication of the book (3). The court rejected this argument and found that no licence existed and copyright had been infringed (4).
The Court was critical of Duff’s and the publisher’s conduct, in that they did not make any enquiries about permission to reproduce the photographs from the relevant person or attempt to identify the person from whom permission would be needed. The court was of the view that the publisher had made a deliberate decision to publish the photographs in the book, despite the lack of copyright clearance and despite the lack of any attempt to obtain clearance. One photograph was marked with a copyright warning. Three photographs were obtained informally from the Fairfax archive with a disclaimer. The photographs were not part of the Fairfax photo library from which a licence could be purchased. One of the photographs was provided to Duff from a person who Duff knew was not the author and copyright owner (5) .
The Court made a declaration in respect of copyright infringement in respect of the 5 photographs and granted an injunction prohibiting further reproduction of the book with the 5 photographs. The court also ordered a destruction of all copies of the book in the possession of the publishers (6).
In assessing compensatory damages for copyright infringement (7) , the court did not take the “licence fee” approach but considered that damages were “at large”- that is, to be assessed by the court having regard to the nature of each photograph and its utility or commercial significance for the book. The damages awarded for copyright infringement in respect of each of the 5 photographs varied significantly: photograph 1 -$500, photograph 2 – $5,000 (back cover of book), photograph 3 -$1,000, photograph 4 – $2,000 and photograph 5 – $750 (8).
The Court also ordered the publisher to pay $45,000 in additional damages for copyright infringement (9) because the publisher had acted with flagrant disregard for the rights of the copyright owners in the photographs. The publisher had taken a calculated risk to publish the photographs without regard to the copyright law and the publisher’s obligations to obtain copyright clearances from the copyright owners in the photographs (10).
Footnotes
1. [2013]FCA 370 at [1] – [3]
2. [2013]FCA 370 at [4] to [5]
3. [2013]FCA 370 at [15]
4. [2013]FCA 370 at [101] – [105]
5.[2013]FCA 370 at [92] – [96]
6.[2013]FCA 370 at [106]
7.Copyright Act 1968, s115(2)
8.2013]FCA 370 at [110] – [115]
9.Copyright Act 1968,sec 115(4)
10.[2013]FCA 370 at [116] – [123]
For Further Information Contact:
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Email: [email protected]
Disclaimer: This Update is not intended to replace obtaining legal advice.
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