Our changing digital landscape poses some difficult challenges for commercial artists and the security of their copyright. Copyright infringement is a common issuethat photographers and all artists now face. Disputes relating to copyright infringement are generally settled or abandoned before they get to court. Therefore questions relating to what constitutes copyright infringement, whether the defence “I didn’t realise I was infringing” is available to consumers, and just how disapproving regulatory bodies are of breaches, have all been largely been left unanswered by our courts.
Finally a case has been decided that sheds light on the judiciary’s perception of copyright infringement in the digital era.
Tylor v Sevinwas decided at the end of February 2014 in the Federal Circuit Court of Australia. The overall impression from the court was that copyright infringement is an important challenge to tackle in the digital age, that deterrence is a primary focus for the courts and that the “I didn’t realise I was infringing” excuse is not a defence.
The case centres on an American photographer, Mr Vincent Khoury Tylor, who alleged that Ms Serpil Aydogan Sevin had infringed his copyright by failing to pay a licence fee for her use of one of Tylor’s photographs. Tylor lives in Hawaii where he runs an online stock image library. He takes photos, uploads them to his image bank and licenses them via this portal to commercial users. Image libraries (or image banks) are an efficient way for media outlets, advertising agencies and business entities to obtain up to date photos for their news stories, marketing schemes, brochures or publications.
Sevin operated an online travel agency out of Melbourne. She conducted her business from a website called “Home Away Travel”. The allegation was that Sevin used one of Tylor’s photographs on her website’s promotion page which was advertising travel destinations from Melbourne. The image, titled “Waikiki Pink Boat”, was of a beach in Hawaii and corresponded to the destination “Hawaii” on the webpage. Sevin did not pay a licence fee for the image obtained from Tylor’s image library.
When Tylor found that Sevin was using his image without a licence he engaged solicitors in Australia in an effort to contact Sevin and resolve the matter. It was established in court that Sevin was uncooperative and was not open to negotiation. She initially shifted the blame to her web designer and then became increasingly difficult to contact. Tylor then commenced proceedings in court.
Sevin did not provide a defence to the claim and failed to attend the hearing therefore an ex parte judgment was made by the Federal Circuit Court of Australia. The court quickly established that Tylor owned copyright in the image used on Sevin’s website.
The court found that Sevin’s actions infringed Tylor’s copyright. Tylor alleged that the infringement was “flagrant” in that Sevin’s conduct was conscious and deliberate. The court did not accept this assertion and suggested that if there was flagrancy in Sevin’s actions it was “at the very lowest end of flagrancy”.
The court did however identify Sevin’s conduct as reckless. This is a critical point of the case, because the court suggested that recklessness is a recurring element in today’s ‘digital infringement’. While reckless infringers may not act deliberately in breach of laws, they are indifferent, dismissive or turn a blind eye to the likelihood of infringement resulting from their conduct. The court verified that an uninformed position about copyright regulations is no excuse to an allegation of infringement.
Additional Damages Awarded
The court pointed to Sevin’s unwillingness to cooperate or negotiate when considering the amount of damages to be awarded. The court found that Tylor should be awarded damages to account for his lost profits (US$1,850 which reflectsthe license fee that would have been payable for the image). Moreover, the court decided to award Tylor additional damages (AUD$12,500) because of Sevin’s conduct which was described as “far from exemplary”. The court also ordered that Sevin pay Tylor’s costs. Sevin will be required to pay of $24,663.14 (including interest) for this infringement. The court also made orders preventing Sevin from reproducing, exhibiting, selling or licensing the image and required that the photograph be deleted from Sevin’s website and other servers where it may be stored.
The approach from the court highlights its disapproval of conduct that dismisses the value of copyright ownership and the moral right of attribution for one’s work.
The expansion of the digital landscape and corresponding growth of online services promotes regular downloading, importing and sharing of content in commercial practice. This digital activity threatens copyright protection and presents challenges for effective monitoring of online content use. The court addressed this concern by emphasising that copyright infringement in the online domain is a serious issue and one that needs to be deterred. This case confirms the enduring importance of upholding copyright protections for artists.
Ruthanna Klawansky is a recent law graduate and is currently completing her Graduate Diploma of Legal Practice at the College of Law.
Tylor v Sevin FCCA 445 (26 February 2014).