The sins of the publishers...
THREE members of an Australian family have won AU$ 54,750 (£36,580 today) from publisher Allen & Unwin over use of their photographs in a book. Four of the five photographs were "pick-ups": various people (often not the photographer) may have said "OK, you can use this for your newspaper story"... but no-one ever gave permission for them to be used in a book. The judge ordered that any remaining copies of the book - which was reprinted about six weeks before the trial - be handed over for pulping.
The book Sins of the Father alleges that Schapelle Corby, who is in jail in Indonesia having been convicted of importing marijuana, was a drugs courier for her late father Mick, knowingly or not. The book's blurb concludes: "this is the book Schapelle's army of supporters do not want you to read." Naturally, the family are not happy with the book.
The four photos were widely used, without objection, in newspaper articles covering the family's campaign against Schapelle's conviction and to have her granted clemency - including articles by Eamonn Duff, the book's author, who is a journalist for the Fairfax group of newspapers.
Allen & Unwin Australia is an independent publisher, unlike the UK ancestor company which now belongs to Rupert Murdoch. The court found that it was the publisher's responsibility, not Duff's, to clear copyright in the photos he supplied. The judgement is nevertheless scathing about Duff:
Mr Duff's faint efforts to suggest that the photograph could be re-used because it had been supplied to [freelance photographer] Mr Esposito were extremely unconvincing.
More to the point as a general statement by the court about pick-ups is this:
Moreover, although Mr Duff believed that Mr Esposito had obtained permission to use the photograph at one point in time on behalf of Fairfax, the use proposed by Mr Duff and the respondent was not use on behalf of Fairfax and had no connection with any purpose for which the photograph had originally been supplied.
The publisher's attitude came in for a genteel judicial mauling too: witness Rebecca Kaiser, the Editorial Director
appeared to suggest in her oral evidence that the respondent was prepared to "take the risk that an author has obtained the necessary permission". That seems to me, with respect, to be a surprising position for a publisher to take, but Ms Kaiser repeated it shortly thereafter.
Insofar as Ms Kaiser gave evidence to the effect that she was satisfied at the time that copyright clearance had been obtained for reproduction of each for the four photographs, I regret to say that in my view that evidence was untrue.
The fifth photo, a snap of a dinner, was presented as evidence of criminal association. The Freelance wonders whether the publisher might have a case for using it in the public interest, but this was not aired in the judgement.
So how much should the compensation be? The Honourable Justice Buchanan concluded:
I do not think... that I should assess compensation based on an assumption that the copyright owner might have accepted a licence fee. It would not be appropriate to attempt to assess what might have been a "reasonable" licence fee in those circumstances. However, I must also take into account that the respondent has removed any opportunity for negotiation by disregarding the rights of the applicants and unilaterally appropriating their property. It cannot expect to do so without paying something as a result.
On top of $7250 as a notional amount that might have persuaded the photographers to grant licences, the judge awarded $45,000 in additional damages - aggravated by the publisher's going ahead with a reprint so soon before trial.
The family members also claimed for breach of their "moral rights" - the judgement refers only to the failure to credit them. However:
There is no reason to conclude that any of the applicants would have wished their name to be published in connection with a photograph of which they were the author, thereby suggesting they were in some fashion or other implicated in, or receiving credit for, reproduction of the photograph in connection with the book.
The court therefore ruled that their moral rights had been breached, but made no additional award and did not call for an apology for the failure to credit.