A recent Federal Circuit Court of Australia decision (Tylor v Sevin  FCCA 445) which has dispelled the myth that the widespread nature of the practise of using images found on the Internet, without seeking permission of the owner of the copyright, gives rise to a defence to copyright infringement.
My Tylor, an American photographer living in Hawaii, brought a claim in Australia against an Australian travel agent, Ms Sevin. Mr Tylor ran a business of taking, selling and licensing destination photographs. On her travel website, Home Away Travel, Ms Sevin published several photographs of destinations including one of Mr Tylor’s Hawaii photographs. Mr Tylor detected Ms Sevin’s use of his photograph through general searches that he undertook on the Internet. Mr Tylor notified Ms Sevin of the copyright infringement and commenced proceedings once it was clear that negotiations to settle the matter had been unsuccessful.
“Common” practise is no defence
The court accepted that Mr Tylor was the owner of the copyright in the photograph and that Ms Sevin had infringed Mr Tylor’s copyright by reproduction of the photograph on her travel website without Mr Tylor’s consent.
Given the ease that materials may be reproduced in the digital age, the court acknowledged the need to deter copyright infringement and identified the role of the court to assist copyright owners to maintain their intellectual property rights and prevent the unlawful use of their works. In particular, the court acknowledged that the widespread practice of using images found on the Internet, without seeking the consent of the owner of the copyright, should not be used as some form of excuse.
“It would not be unreasonable to say that there are many people utilising images for which they have no licence, without realising the gravity of the situation, or in many cases, that they do not need a licence for an image which they may feel to have been in common use. That is not to condone what has occurred. This case will be important because, through it, it will be made clear that this conduct cannot continue.”
Damages and orders
The court awarded damages in the amount of US$1,850.00 pursuant to section 115(2) of the Copyright Act 1968 (Cth) (the Act) being, an equivalent amount to the licence fee Mr Tylor would have ordinarily charged for use of his photograph.
In assessing whether additional damages were applicable the court found that, amongst a number of other considerations, while the flagrancy of the infringement was at the lowest end of the scale, Ms Sevin’s conduct since the matter had been brought to her attention was “far from exemplary”. In correspondence between Ms Sevin and Mr Tylor, Ms Sevin blamed the reproduction of the photograph on her web designer. Ms Sevin made no effort to apologise for the breach of copyright, take down the offending photograph or offer to pay a licence fee for its use. Finally, when proceedings were commenced, Ms Sevin took no part in them. The court went so far as to state that “[s]he has, in effect, “cocked a snook” at the court” and that in such circumstances, additional damages in the amount of US$12,500.00, pursuant to section 115(4) of the Act, were appropriate.
In addition to damages, the court ordered that Ms Sevin:
- be permanently restrained from a number of activities including reproducing, communicating and distributing the photograph
- delete all reproductions of the photograph from her website and all archives
- pay Mr Tylor’s legal costs in the sum of $9,500.00.
This case serves as an important reminder that, just because materials are available online and often copied without permission of the owner of copyright, intellectual property rights can be enforced and protected in the digital age.
For those publishing images and other materials online care should be taken to ensure that appropriate consents or licences are obtained before reproducing third party content. Further, if you have been put on notice as to an alleged infringement, prompt enquires and action.
Copyright owners should also ensure that they regularly monitor use of their intellectual property across the digital landscape and take action against infringers. While legal proceedings are not always needed or warranted, for those companies where their copyright is an important asset, legal proceedings may be appropriate and important in sending a message to deter similar infringing activity.