Every day, we see beautiful images. The internet’s accessibility and our smartphones enable us to share our photographs and view, copy and download others. Downloaded photos from the internet can, however, present a problem when people are unaware or forget that copyright automatically protects the photos.

What is Copyright?

Copyright is an intellectual property right that gives the author of an original work exclusive rights to use and exploit their creation. Regarding photographs, the person taking the photo owns the image’s copyright. When you download somebody’s photo from the internet, whether it’s from Instagram, Pinterest or Google images, and you don’t have the copyright owner’s permission, you are likely infringing somebody else’s copyright.

Copyright Infringement in Taylor v Sevin [2014]

In Tylor v Sevin [2014] FCCA 445, the plaintiff, Tylor was a professional photographer from Hawaii who sold stock images online. Sevin was a travel agent operating out of Melbourne. Tylor found out that Sevin published a flight listing on her website using his photo on a Hawaiian beach. When Tylor’s solicitors approached Sevin about the infringement, she didn’t immediately remove the photo from her website, nor was she responsive and cooperative. The parties, unable to resolve the matter, took their dispute to court.

What Did the Court Decide?

The court found that Sevin’s use of the photo infringed Tylor’s copyright and ordered Sevin to pay Tylor damages. Under s115(2) of the Copyright Act 1968 (the Act), the Court awarded $1850.00 USD. In determining damages, the Court considered evidence of invoices from Getty Images and decided Tylor was entitled to a “fee slightly more than what might have been charged on Getty Images”.

When awarding additional damages under s115(4) of the Act, the Court said that the flagrancy of the respondent’s conduct was on the lower end of the scale. That is, the respondent used the work without making any reasonable inquiries as to the ownership or authorship of the copyright.

The Court also considered how common the respondent’s conduct was and believed that there was a need to deter similar infringing conduct to assist copyright owners, and prevent unlawful use. Lastly, the court deemed the respondent’s conduct as being “far from exemplary” since after she received the infringement notice, she made no efforts to apologise, or to take down the offending image and pay the license fee. The Court held that respondent benefited from the infringement in that she didn’t pay the license fee when she should have had she complied with the law.

Key Takeaways

The damages the Court required Sevin to pay were significantly more than the license fee to use the photograph. So, if you download images or use photos from the internet, make sure you aren’t infringing someone else’s copyright.

Also, if you pay someone to design your website, and they use similar images or photos, always ask if they acquired the appropriate license or permission to use the photos. Blaming another party for using photos is an insufficient defence to copyright infringement.

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Questions about copyright infringement or protecting your photos? Ask our intellectual property lawyers.

Raya Barcelon

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