Corby v Allen & Unwin Pty Limited  FCA 370
A recent case in the Federal Court of Australia has cast light upon the importance of publishers obtaining proper permission prior to the publication of illustrative materials. Corby v Allen & Unwin serves as a reminder to publishers that it is not sufficient to assume that the author has obtained the necessary permissions and cleared the rights for usage of photographs. Further, this case is a reminder that publishers must be more active in obtaining permission to reproduce images, and to ensure that all copyright material has been properly cleared prior to publication.
This case was brought about by various members of Schapelle Corby's family against Allen & Unwin. Schapelle Corby has been serving a jail sentence in Indonesia since 2004 for the importation of drugs.
The novel in question is called Sins of the Father, written by Eamonn Duff (Novel). There were 37 photographs in total published within the Novel, 5 of which formed the basis of the proceedings. The publisher claimed that all images were either given to Mr Duff or the media in general for publication. It was argued by the applicants that the family members who took the photos would not have given specific permission for the use of the images at any price, and further, that no permission was sought or granted in relation to the 5 photos.
The Court accepted the argument of the Corby family and Justice Buchanan awarded each of the various family members between $500 and $5,000 in compensatory damages for the infringement pursuant to section 115(2) of the Copyright Act 1968 (Cth) (Act), and $45,000 by way of additional damages pursuant to section 115(4) for the "deliberate" and "studied" disregard of the applicants' copyrights. Allen & Unwin was also ordered to destroy all remaining copies of the Novel held by the publisher and for any future editions to be printed without the 5 photographs.
The infringement of copyright – a useful reminder of the basic principles
The Act protects the exclusive right of an owner of copyright in an artistic work, and a photograph is a work in which copyright subsists. The initial owner of copyright in a photograph is the "author" of the photograph. In the absence of an agreement to the contrary the author is usually the person who took the photograph and also the owner of the copyright in the photograph. They have the exclusive right to reproduce it and to permit its reproduction.
Justice Buchanan found that there was no effort made by Mr Duff or Allen & Unwin to obtain the consent of the relevant owners of copyright to the reproduction in the Novel of any of the 5 photographs. Further, there were no reasonable grounds upon which the author or publisher could have concluded that they had any benefit of the licence from the owner of the copyright to reproduce any of the photographs.
The defence of "innocent infringement"
The respondent relied on a defence of "innocent infringement" based on section 115(3) of the Act. In order to obtain this protection, a defendant must establish (i) an active subjective lack of awareness that the act constituting the infringement was an infringement of the copyright, and (ii) that, objectively considered, he or she had no reasonable grounds for suspecting that the act constituted an infringement.
Allen & Unwin failed to successfully establish such a defence, because:
- the defence is not available simply because a defendant does not know who the owner of the copyright is; and
- in early 2013, although the litigation had commenced, the publisher printed further copies of the Novel as demand required more stock. Justice Buchanan found that it was "impossible to claim the benefit of section 155(3) once present litigation was underway".
The protection of moral rights
Photographers also have moral rights in relation to their works, and as such, the applicants also sought remedies under Part IX of the Act, which deals with moral rights. The moral right relevant here was the author's right of attribution of authorship, which is protected under section 193 of the Act. In this case, this would mean that the photographer has the right to be identified as the author of the photograph when it is presented to the public in the published Novel.
The predominant issue was whether it was reasonable not to attribute authorship of any of the photographs, because, as argued by the respondents, there is an industry practice that authorship of the photographs is not always attributed. This argument was rejected, and the finding was made that the moral rights of the applicants had been infringed, and that:
- it would not have been difficult or expensive for Allen & Unwin or Mr Duff to make any enquiries as to the authorship of the photographs;
- given that some photographs in the Novel were actually attributed, this rebutted the argument that the respondent was following a particular industry practice of not attributing the photographs.
Practical implications for publishers
While Corby v Allen & Unwin relates specifically to the use of photographs in the Novel, it underlines the principles of copyright which apply to all publishers. The case enforces the principle that supplied photos, in essence, are licensed for a specific purpose. It is therefore prudent that a fresh licence is sought if an image is to be republished. Publishers should consult with lawyers where they are unsure of their obligations under the Act.
A copy of Corby v Allen & Unwin is available through the below link: http://www.austlii.edu.au/au/cases/cth/FCA/2013/370.html
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