Wednesday, May 7, 2014
Tylor v Sevin (2014) AIPC 92-468: Online Copyright Infringement on Stock Photos
A recent case involving American photographer and a travel website owner based in Melbourne underscores the rampant unlicensed use of stock photos online, and how the court might respond to cases in the future.
The complainant in the case, Vincent Khoury Tylor, makes a living out of taking, selling, and licensing of stock photographs. The respondent, Serpin Aydogan Sevin, owns a website that promotes her travel business. The complainant alleged that the respondent used one of his stock photos for her website without obtaining a license or even making an attempt to contact and enquire about copyright ownership.
Instead of asking for an account of profits, the defendant claimed damages and sought an injunction. He also presented evidence of the charges for using his copyright-protected work, based on charges made by Stock Photo broker Getty Images. Mr Tylor emphasised the fact that the images were gallery-quality and were exclusive.
The court accepted that Mr Tylor is the owner of the copyright in the photograph in question, and that the respondent infringed on his copyright by using the images without authorisation. The court did not address whether the applicant wanted to avoid paying the licence fee, as it accepted that regardless of the intent, Ms Sevin attained some commercial benefit by not paying for a licence fee.
The defendant argued that the problem was caused by her web designer, and that the proceedings should target this unnamed person. Ms Sevin also made no effort to apologise for the breach, and did not take down the offending photograph. She also made no offers to pay a licence fee for its use. Additionally, she made no effort to take part in the proceedings outside of a series of letters and emails sent to her by the solicitors acting on behalf of Mr Tylor.
The respondent was ordered by the court to pay US$1,650 in damages to the complainant and was also ordered to pay AUD$12,500 in additional damages under s 115(4) of the Copyright Act 1968 (Cth), and to pay Mr Tylor’s costs (which was assessed at AUD$9,500). Injunctions were also granted over the use of the work in question.
This is another example of the use by the Court to order additional damages. Additional damages under the Copyright Act are a discretionary, punitive remedy. Often much less than the award of actual damage (typically between 30%-40%), in cases with low damages awards the courts seem willing use additional damages to show disapproval for a respondent's flagrant conduct.