In Emma Delves-Broughton v House of Harlot  EWPCC 29, the Patents County Court held that alterations made to a photograph amounted to a derogatory treatment of the work and, therefore, infringed the claimant’s moral rights under Section 80 of the Copyrights, Designs and Patents Act 1988 (the CDPA).
House of Harlot (HoH) was alleged to have published a photograph, produced by Emma Delves-Broughton (EDB), on HoH’s website without either EDB’s express or implied permission. Further, HoH was alleged to have made changes to the size, display and artistic composition of the image by reducing and reversing it, and removing its background.
EDB attested that HoH had infringed her copyright in the photograph by publishing the image on HoH’s website without prior approval to do so and without the grant of any licence that might otherwise act as a defence. In addition, EDB claimed that the alterations made to the image resulted in infringement of her moral rights in the work.
In support of her claim, EDB relied upon Section 80 CDPA that concerns moral rights in a copyright work. Provisions in Section 80 state that
The author of a copyright […] artistic work has the right […] not to have his work subjected to derogatory treatment. Derogatory treatment is further defined at sub-section 2(b) of section 80. This is considered to subsist where treatment […] amounts to distortion or mutilation of the work, or is otherwise prejudicial to the honour or reputation of the author or director.
Recorder Douglas Campbell found in favour of EDB in both instances. In her evidence, EDB confirmed that she had not afforded a licence to HoH and, in particular, in supplying the photographs to the model in question for her own private and non-commercial use, she had, in writing, retained copyright to the images in the event that they should ever be distributed to a third party.
Giving evidence for HoH, the model photographed claimed she had entered into oral discussion with EDB, to the effect that HoH would have a licence to use the image on its website. Recorder Campbell was not, however, minded to find in favour of HoH on this count, primarily because he did not consider there to be strong enough evidence to support this line of defence. Whilst the model had given evidence in support, Recorder Campbell found HoH a more credible witness and was not convinced by inconsistencies in the witness statement given by the model that contradicted her oral evidence before the Court.
Regarding the claim for infringement of moral rights in the work, Recorder Campbell based his decision on the nature of the changes that were made to the photograph. HoH admitted making alterations to the size, display and background of the photograph. They contested, however, that such amendments amounted to derogatory treatment of the work.
In making his decision, Recorder Campbell considered the amount of time, consideration and effort expended by EDB in the composition and creation of the original photograph. In particular, he cited the artistic importance of the forest background that was removed by HoH. Accordingly, it was held that, whilst the changes made to the photograph did not constitute mutilation of the original work, nor were they prejudicial to the honour or reputation of EDB, there was distortion of the photograph with the result that the treatment of the work was derogatory.
Claims for derogatory treatment of copyright works are rarely before the Court. In particular, this case marks a departure from the currently accepted precedent that a copyright work is usually only deemed subject to derogatory treatment where the claimant is able to demonstrate that distortion or mutilation and prejudice to honour or reputation subsist, an approach that follows Article 6 bis of the Berne Convention for the Protection of Literary and Artistic Works, under which an author has the right to object to “any distortion, mutilation, or other modification of, or other derogatory action in relation to” a said work that would specifically “be prejudicial to his honour or reputation”.
A departure from the generally accepted requirement to show prejudice serves seemingly to lessen the evidential burden upon the claimant with regard to demonstrating the existence of an infringement of moral rights. As such, this may pave the way for a greater flow of similar claims before the courts.