Use of Photos from Another's Twitter or Internet Page

Another reminder has been sent by the Courts confirming that publication of photos on Twitter on or other web pages does not entitle the world at large to use or republish those photos.

In 2013, the Sun‑Herald newspaper published a report on a Mr Monty. The article contained a photograph of Mr Monty together with what appeared to be a professionally created photograph of his partner. The picture was of his partner in bed and semi‑naked from the waist up.

Mr Monty asserted that he was the copyright owner of the photo (he had taken it). He sued Fairfax for breaching that copyright.

The photograph had previously been published on his partner’s Twitter account. In addition, the photograph had been published on a website advertising his partner’s business. Mr Monty took no issue with the photograph being used in this regard but this did not, according to the Court, deprive him of the right to obtain damages for breach of copyright by the newspaper.

Interestingly, Fairfax conceded most of the relevant legal points in this case and agreed that copyright vested in Mr Monty and that Mr Monty had not provided permission for the photograph to be published. The only material question in the case was the level of compensation that Mr Monty would be entitled to.

One of the ordinary ways of calculating compensation for breach of copyright is to determine how much would have been charged had the photograph been appropriately licensed to Fairfax. In this case, however, Mr Monty had indicated that he would never have licensed the photograph to the newspaper, and accordingly the Court did not find it appropriate to consider this form of loss to be an appropriate measure of the damages suffered by Mr Monty.

On the basis that Mr Monty had actually not suffered any loss, the Court initially determined that no damages, other than nominal damages, should be awarded to Mr Monty. They made an initial award of $1.

But the Court also formed the view that additional damages could be awarded if there was a calculated disregard for the Plaintiff’s rights or a cynical pursuit of benefit by the publishing party. The Court determined that additional damages were payable in the case and ordered that $10,000 be paid to Mr Monty in that regard.

The conclusion was that that earlier publication on Twitter and on a separate website did not derogate from the rights of the copyright holder. Although Mr Monty had not suffered any financial loss because he would not have licensed the use of the work for any amount, he was entitled to receive nominal compensatory damages, plus additional damages. In total, the Court awarded $10,001.

This was a decision handed down on 7 August 2015 by the Federal Circuit Court of Australia – Monte v Fairfax Media Publications Pty Limited [2015] FCCA 1633.

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