Copyright is a type of intellectual property that protects the expression of ideas in creative works, such as music, books and images. In general, photographers own the copyright in their photographs.
If you become aware that someone is using your photograph without your permission, you may be able to make a claim for copyright infringement under the Copyright Act 1968. For an overview of remedies for copyright infringement, see our remedies roadmap. Below, we look at one type of remedy called damages.
Two Types of Damages
If someone is using your photographs without permission, there are two types of damages for copyright infringement that you may seek under section 115 of the Copyright Act:
- Compensatory damages (under section 115(2)); and
- Additional damages (under section 115(4)).
As the name suggests, the purpose of compensatory damages is to compensate the photographer for the loss that they have suffered as a result of another person’s unauthorised use of their photograph. Compensatory damages may then take into account different types of loss, including:
- Loss of profit that could have been made using the photograph;
- Loss of the licence fee that the photographer could have charged for an authorised use of the photograph; and
- Loss of reputation caused by the infringement.
The Licence Fee Approach
In cases involving copyright infringement of photographs, the most common measure of compensatory damages is lost licence fees. This approach is logical because, in these cases, the photographer has been denied a licence fee for someone else’s use of their photograph.
The size of the licence fee may be calculated based on the photographer’s normal business practices and industry standards. Software programs are also available to help estimate licence fees.
However, the licence fee approach will not be relevant in cases where the photographer would not have granted a licence to the infringing party, or the infringing party would have chosen not to use the photograph instead of paying a licence fee.
If damages cannot be calculated based on the loss of licence fees, the court might choose to award nominal compensatory damages under section 115(2), such as $1.00. However, in these cases, the court may still award additional damages.
Imagine if the size of a parking fine was the same as the cost of paying the parking meter in the first place. A lot of people would take the risk and not pay the meter.
The same applies to copyright law. If the fine for using a photograph without permission were just the licence fee that the user should have paid in the first place, infringing parties would try their luck – knowing that the worst that could happen is that they will be caught and asked to pay the licence fee. More likely, the infringement will be undetected and they won’t have to pay anything.
The Copyright Act then recognises that it may not be sufficient just to compensate a photographer for their loss, and that additional damages should also be available in some cases.
So, as well as compensatory damages, the court may award additional damages based on the following factors:
- The flagrancy of the infringement;
- The need to deter similar infringements by the infringing party and more generally in the community;
- The conduct of the infringing party after the infringement;
- The conversion of the photograph from hard copy to digital form by the infringing party;
- Any benefit derived from the infringing party; and
- Any other relevant factors.
Although flagrancy and deterrence are perhaps the most common grounds for additional damages in cases involving the unauthorised use of photographs, the court may award additional damages based on any of these factors.
Importantly, additional damages are often much larger than compensatory damages in the context of copyright infringement in a photograph. For instance, the court may assess that the user should have paid a licence fee of $1,000 (and so assess compensatory damages under section 115(2) as $1,000), but award additional damages under section 115(4) over $10,000 based on the infringing party’s conduct and the need for deterrence.
If you think that someone has used your photograph without permission, get in touch with our intellectual property lawyers.
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