Case Law Update: Copyright

23-07-2012 15:35

In the recent case of Celebrity Pictures Limited & Tyson Sadlo v B Hannah Limited [2012] EWPCC 32 the Patents County Court had to decide whether copyright in six photographs of Karren Brady had been infringed.

Mr Sadlo is a photographer who was commissioned by a company called Oxygen 10 Limited to take photos of Ms Brady for use in a magazine published by Oxygen 10.  The Defendant Company subsequently took over the business of Oxygen 10 when the latter company ceased trading.  B Hannah authorised the use of the photographs in a health magazine and online and it was this authorisation that the Claimant argued was infringement.

The Defendant tried to argue that it owned the copyright in the photographs or was a joint author of the photographs.  The Defendant produced a contract which stated that Oxygen 10 owned the rights and that by accepting the assignment Mr Saldo agreed that Oxygen 10 had worldwide exclusivity of the photographs.  The Court, however, preferred Mr Saldo’s evidence in this regard and held that Mr Saldo had not seen this contract before the assignment and that if he had seen the contract he wouldn’t have carried out the commission on this basis.  Furthermore, the Court held that the limited brief sent to Mr Saldo by Oxygen 10 was not sufficient to mean that Oxygen 10 (or its successors) owned or jointly owned the copyright in the photographs.

The Defendant then tried to argue, in the absence of a contract, that there was an implied term that Mr Saldo would transfer the copyright to Oxygen 10.  Again, the Judge chose not to agree with this.  

The only question which the Court then had to decide was whether infringement of the copyright in the photographs had taken place.  B Hannah argued that if there was any liability for copyright infringement it was the responsibility of Oxygen 10.  However, there was evidence to suggest that the relevant acts (i.e. authorising the publication of the photographs in the health magazine and online) were all carried out after Oxygen 10 had ceased trading.  There was also evidence to suggest that Mr Saldo had been told to redirect his invoice to B Hannah.  The Judge held that by the time of the relevant acts everything was within B Hannah’s control and that it was B Hannah, on the evidence, which negotiated with and subsequently authorised the publication of the photographs in the health magazine.

The Judge therefore concluded that there had been infringement of copyright by B Hannah.

It is important to note that a lot of the argument was taken up with who was the owner, and whether there were implied or express terms detailing the arrangements for the copyright.  Therefore, when entering into commissions such as these, the parties should always consider drawing up a formal arrangement setting out at the outset where the ownership of the copyright lies.  It doesn’t need to be a long complicated document but it is worth ensuring that all parties know where they stand.

If you need any more information on this subject, please contact Emma Hayward.

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