Copyright in Photographs: new case law

07-02-2012 11:22

In a recent judgment, decided on paper, the Patents County Court had to decide whether photographs used on a charity website infringed the Claimant photographer’s copyright, and if so, how much to award him in compensation (David Hoffman v Drug Abuse Resistance Education (UK) Limited [2012] EWPCC 2).

The defendant is a charity which helps young people understand the dangers of substance abuse.  The claimant claimed that from 2004, 19 photographs of various drugs, in which he owned the copyright, were used on two websites operated by the defendant without his permission and therefore in breach of copyright.  The defendant did not dispute that the photographs were used on the websites nor that copyright existed in them.  The defendant argued that it had used a firm to design the website for it and that this firm took the photos from a Government sponsored website called “Talk to FRANK”.  The defendant believed that the “talk to FRANK” site, which included the photographs at issue in this case, was covered by Crown Copyright and therefore that the photos could be used by the defendant on its own website.

HHJ Birss QC held that the photographs were not protected by Crown Copyright but that the Claimant did own the copyright in those photos.

The defendant argued that “it had not intentionally or knowingly infringed” the claimant’s copyright.  However, this is not a defence to infringement.  The fact that the defendant had employed an outside firm to produce the website did not mean that the defendant escaped liability either as the websites in question were the defendants’ own websites and were the responsibility of the defendant.  The defendant therefore was found to be liable for infringement under the Copyright, Designs and Patents Act 1988.

This case serves as a useful reminder to businesses and individuals that careful consideration is needed before using material from the internet for your own requirements.  In addition, the fact that a third party designer produced the websites and found the photos did not, in this case, mean the defendant was off the hook for the infringement.

If you have any queries about this topic, please contact Emma Hayward.

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