The family of Schapelle Corby has been successful in an action for infringement of copyright against the publisher of the book “Sins of the Father1”.
The family members alleged that, in using the photographs (taken by various members of the Corby family) in the book, the publisher infringed their copyright and moral rights.
The five photographs in question were taken between 1985 and 2005. Some of the photographs had been given to the author or to the media, in association with various newspaper articles about Schapelle Corby since 2005. In some cases the photographs had been given directly to the media by Corby family members.
At issue was whether the publisher had a licence to publish these five photographs. A further issue was the failure of the publisher to properly attribute the authors of the photographs.
The Court considered whether the copyright owners had impliedly licensed the publisher to use the photographs, and, if so, whether the licence had been revoked prior to publication.
In finding that the publisher had infringed the copyright and moral rights of the Corby family, the Court decided that:
- the publisher had not been given a licence to use the copyright in the photographs in the book;
- where some members of the Corby family had distributed copies of some of the photographs to the media in 2005, this did not imply the creation of a licence from the original photographer to the publisher of the book;
- the fact that some of the photographs were retrieved from newspaper archives, and others supplied informally by newspaper photographers, also did not imply a licence or sub-licence, originating from the copyright owner;
- even if there was an implied licence from the photographer to the publisher, the licence was revoked when lawyers for the Corby family wrote to the publisher complaining about the use of the photographs in the book; and
- the publisher’s copyright clearance policies had not been followed. Those requirements included a procedure to obtain “informed consent” from the copyright owner for the use of the photographs in particular publications.
The publisher was ordered to pay damages under the Copyright Act 1968 (Cth) and significant additional damages of $45,000 for flagrant infringement. The Court gave declarations and injunctions against further printing of the book, and an order for destruction of any copies in the publisher’s possession.
This case emphasises the need to obtain copyright clearance or permission for commercial use of copyright material before the material is published.
It is risky to assume permission merely from the fact that material has been previously published in other channels, or that the publisher has come into possession of a copy of the work directly or indirectly from the copyright owner.
The case is also a reminder of the obligation to attribute work under the moral rights provisions.