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Yes, you can get compensation for not being credited

YOU HAVE a right to be identified as author of your work - so long as it's not used in a newspaper or magazine or otherwise for reporting news and current affairs, and so long as you have "asserted" that right. But what does that last bit about "assertion" mean?

It is the rule in the law of England and Wales that Parliament can pass an Act, but no-one knows what it means until a senior court has ruled on it. Beause the law on your right to be identified is so vague, no-one has funded a case to find out, so it remains unclear, so...

Now we have some help from a ruling in the "Intellectual Property Enterprise Court" - which we often refer to as the copyright small claims court. Though this does not set a precedent that other courts have to follow, it helps.

John Walmsley took photos of Alexander Sutherland Neill, founder of the famous Summerhill School, and these were published in John's book about Neill, published by Penguin in 1969. Recently, he found the photos, twice, on a blog run by a company Education Limited. He claimed £250 for each instance of each photo, doubled for breach of his "moral right" to a credit, uplifted by a further 100 per cent as a "flagrant" breach, plus VAT and interest.

District Judge Clarke accepted that John had "asserted" his authorship by the copyright notice in the 1969 book - though the phrase "assert your moral rights" didn't enter UK law until 1988. He had strengthened the "assertion" by distributing photos with a "watermark" saying "all rights reserved" since then. The defendants had no excuse for not crediting him: they admitted they had found his photos through an internet search which also threw up many instances of the same photos with the watermark.

This is an important clarification of what "assertion" means - basically, a plain English reading with no clever technical limits - bearing in mind again that this is a lower court.

Judge Clarke found that the headlines on the website pointed to the same article, and that that was therefore one infringement. Further, though the defendant had shown (and had in fact pleaded) a "shockingly low level of understanding", its actions were "naive and posibly one might be inclined to say pretty stupid", there was not an "element of intent or wilful negligence" so no additional damages were awarded for flagrant breach. John came away with £250 for each of two breaches, doubled for failure to credit him: £1000 plus VAT.

Judge Clarke suggested that the defendant could have avoided this stupidity by looking at advice from the NUJ.

John Walmsley told the Freelance that he is "very happy" with the result. "That was my fist ever [Small Claims] case. They do take a great deal of time to prepare, to get all the details right - on both sides. I was surprised the infringers didn't settle before it went to court. There was no doubt they did it - there usually isn't I understand - but they wouldn't agree to pay the amount I claimed - so they ended up paying most of it, and their legal costs on top."

"The point that Judge Clarke on 'assertion' is important, and I hope it will help other photographers and authors."

Last modified: 19 May 2016 - © 2016 contributors
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