Another reminder has been sent by the Courts confirming that
publication of photos on Twitter or on other web pages does not
entitle the world at large to use or republish those photos.
In 2013, the Sun‑Herald newspaper published a report on a
Mr Monty. The article contained a photograph of Mr Monty together
with what appeared to be a professionally created photograph of his
partner. The picture was of his partner in bed and semi‑naked
from the waist up.
Mr Monty asserted that he was the copyright owner of the
photo (he had taken it). He sued Fairfax for breaching that
The photograph had previously been published on his
partner's Twitter account. In addition, the photograph had been
published on a website advertising his partner's business.
Mr Monty took no issue with the photograph being used in this
regard but this did not, according to the Court, deprive him of the
right to obtain damages for breach of copyright by the
Interestingly, Fairfax conceded most of the relevant legal
points in this case and agreed that copyright vested in
Mr Monty and that Mr Monty had not provided permission
for the photograph to be published. The only material question in
the case was the level of compensation that Mr Monty would be
One of the ordinary ways of calculating compensation for breach
of copyright is to determine how much would have been charged had
the photograph been appropriately licensed to Fairfax. In this
case, however, Mr Monty had indicated that he would never have
licensed the photograph to the newspaper, and accordingly the Court
did not find it appropriate to consider this form of loss to be an
appropriate measure of the damages suffered by Mr Monty.
On the basis that Mr Monty had actually not suffered any loss,
the Court initially determined that no damages, other than nominal
damages, should be awarded to Mr Monty. They made an initial
award of $1.
But the Court also formed the view that additional damages could
be awarded if there was a calculated disregard for the
Plaintiff's rights or a cynical pursuit of benefit by the
publishing party. The Court determined that additional damages were
payable in the case and ordered that $10,000 be paid to
Mr Monty in that regard.
The conclusion was that that earlier publication on Twitter and
on a separate website did not derogate from the rights of the
copyright holder. Although Mr Monty had not suffered any financial
loss because he would not have licensed the use of the work for any
amount, he was entitled to receive nominal compensatory damages,
plus additional damages. In total, the Court awarded $10,001.
This was a decision handed down on 7 August 2015 by the
Federal Circuit Court of Australia – Monte v Fairfax
Media Publications Pty Limited  FCCA 1633.
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The Ugg boots case revolves around who holds the trade mark rights to the word 'Ugg' in relation to sheepskin boots.
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