Corby family in the copyright spotlight

Posted by Cara Friedman, Nicole Reid and Paul Kallenbach

Image courtesy of renjith krishnan

The Federal Court of Australia has found in favour of Schapelle Corby's sister, brother and mother in relation to five photographs published in the book, 'Sins of the Father'.  The book – published by Allen & Unwin Pty Ltd (which was the respondent in the action) and written by journalist Eamonn Duff – attempts to portray Schapelle as a knowing participant involved in her father's drug trafficking.  Neither the publisher nor the writer of the book sought permission from the owners of the photographs to use the photographs in the book.

The law

Generally, the owner of copyright in a photograph is the person who took it (although there are exceptions that may apply where the photograph was commissioned for a private or domestic purpose or created under the terms of an employment agreement with the proprietor of a newspaper or magazine).   As a photograph is an artistic work in which copyright subsists, its owner has the exclusive right (amongst others) to reproduce it, or permit its reproduction, unless the owner grants a licence to another to do so or another person can exercise that right under one of the statutory licences or exceptions set out in the Copyright Act 1968 (Cth) (Copyright Act).

The person who took the photograph also has moral rights in the photograph, including the right to have his or her authorship attributed, unless a defence applies.

The issue

The Court held that the publisher did not have express permission from any of the copyright owners to reproduce the photographs in the book.  The relevant question for the Court was whether Allen & Unwin could reproduce the photographs without this express permission, given that express or implied permission had been given to others to reproduce the photographs for an earlier purpose.

Allen & Unwin withdrew its 'innocent infringement' defence (under section 115(3) of the Copyright Act) during closing submissions.  Nor did it try to argue that it had engaged in fair dealing for the purpose of reporting news.

The photographs

The relevant photographs were of Schapelle Corby and/or her mother, sometimes with others.   Two of them were taken by Rosleigh Rose, Schapelle's mother, who also owned a 25% share in the third photograph, as it had been taken by her late partner, of whose estate she was a 25% beneficiary.   The other two photographs were taken by Michael and Mercedes Corby, Schapelle's brother and sister, respectively.

The evidence was that three of the photographs were initially supplied for use in an article that Mr Duff was writing in 2005 for Fairfax media.  Buchanan J held that no licence existed for reproduction of these three photographs in the book.  Any lawful supply of the photographs (if at all) was limited to the context in which they were initially supplied (ie for use in the article).  His Honour held that the current use had no connection with the previously authorised purpose.

Nor did the Court find that any licence existed in relation to the fourth photograph, which was originally given to Schapelle's friend, who in 2005 had provided it to Mr Holland, a Fairfax photographer, in order to assist Schapelle's case.

In relation to the final photograph, the court found that even if it had been provided as a gift to Mr McHugh or Mr McCauley (the two men in the photo with Rosleigh Rose, who were both later convicted of drug dealing), this would be insufficient, without more, to constitute a licence for its reproduction in the book.

Buchanan J observed that 'the defence mounted was weak to say the least.'  Consent was sought neither by the author of the book, nor the publisher, for copyright clearance.  The Court noted that in these circumstances it was the responsibility of the publisher, not the author, to decide which photographs were reproduced in the book.

Moral rights

The court found that the applicant family members' moral right of attribution had been infringed in relation to four of the photographs, as Allen & Unwin had failed to attribute authorship to them.  There was no evidence to establish the defence (to moral rights infringement) that it was 'reasonable in all the circumstances' not to identify the author on the basis of industry practice (this was especially so given that authorship of some photographs in the book was attributed) or any other of the defences available in the Copyright Act.

Orders

The Court granted an injunction prohibiting Allen & Unwin from further reproduction of any of the five photographs, and ordered destruction of any copies of the book in its possession.

The Court did not assess compensatory damages on the basis of what the copyright owners may have accepted as a licence fee, as the evidence was that they would not have given permission to use the photographs in the book.  Instead, damages of $9,250 were awarded, based on the commercial significance of each photograph and its relevance to the central themes of the book.  For example, damages of $5,000 were awarded for infringement of the copyright in one of the photographs, due to its prominence on the back cover of the book and its focus on the relationship between Schapelle and her father, a central theme of the book.

Acknowledging the need for deterrence (both general and specific) and marking its disapproval of such 'flagrant disregard' for the applicants' rights, the Court awarded the applicants additional damages of $45,000.   It would appear that the Court's perception of the copyright infringement as a 'conscious, calculated business decision' by the publisher provided the necessary impetus for this additional damages award.

In relation to the four relevant photographs, the Court made only a declaration of moral rights infringement.   Neither damages nor an apology was ordered, as no loss – neither commercial nor personal – was considered to have resulted from the lack of attribution.   Schapelle's family members wanted no association with the book at all, including by being attributed as authors of the photographs.   Accordingly, Buchanan J labelled the moral rights infringement as 'more a question of form than substance'.

This case does not establish any new law.  It does, however, remind publishers that it is their responsibility to seek copyright clearance prior to publishing photographs, and not to rely on unwritten permissions granted to others, the scope of which is unclear and may not cover later uses.   It is also a rare case that considers moral rights issues (although the infringement issues were not considered in great detail), though it seems the conclusion here is that a finding of moral rights infringement may not help applicants obtain a larger award of damages.