Avram's copyright problem
2021 exam (B1), question 2, reimagined as a solicitor-client interview
Good morning Avram. How can I help?
Hi! I think that my copyright in a couple of photos might have been breached, so I hope you can tell me what I can do about it.
Well, I’m happy to do that of course. Tell me briefly what’s happened.
A couple of years ago, I went on a demo in London, an anti-Brexit protest. I always wear my camera when I do something like that, you never know what you might be able to get a picture of, and it was certainly a good day for photos. I got a couple of really good shots, one of the huge crowd in Trafalgar Square and another of a demonstrator involved in an argument with some idiot Brexiteer. Do I own the copyright in them? I haven’t registered them or anything.
Yes, that was going to be my starting point. So long as they are your original work, you automatically own copyright in your photographs. No registration requirements or other formalities. You have to qualify for protection, but I know that we have a copy of your passport on file because we have to satisfy ourselves about the identity of our clients and it’s a British passport so no problem there. I think we can assume that the photos are your original work – it doesn’t sound as if they were posed or anything like that, so you can’t be said to have copied someone else’s composition. And I assume that they weren’t taken by a monkey who happened to borrow your camera.
Er – no. Why is that important?
It’s not, but you might have seen the stories in the media a few years ago about the macaque selfie.
Oh, yes, I remember. It seemed a bit contrived, arguing about whether the monkey should own the copyright.
Yes, quite, but that claim was brought in the American courts and that’s another world. Anyway, there doesn’t seem to be any reason why you don’t have copyright in your photos. They are artistic works for the purposes of the Copyright, Designs and Patents Act 1988, although it’s possible that we don’t need to worry any longer about how to classify them. But I digress, which isn’t a good idea when the clock is running.
Exactly, even if this is a fixed-fee session. So what bothers me is that some artist has made a ridiculous papier-mâché diorama sort of thing using my photo of Trafalgar Square. I wouldn’t mind, but it’s being displayed in some trendy East London gallery and they are selling photographic reproductions of the diorama. They would do better to sell postcards of my photo!
I’m sure they would, but there’s no accounting for taste. I bet they are charging a lot for the postcards!
Yes they are, and I know because I went in and bought this one. (He hands over a postcard.) What’s worse, the gallery paid the artist a fortune for her papier-mâché model, which is the sort of thing I thought primary school children made. And when I tried to take a photo of it they threw me out!
OK, let’s consider that lot first then you can tell me about the other infringement (we don’t say “breach” of copyright, it’s a sort of trespass on your property rather than a failure to discharge a duty owed to you). The law says that there are certain acts that only the copyright owner can do, or authorise others to do. Interesting use of the word “authorise”, because it looks as if it derives from “author”, and the copyright law calls everyone who creates a copyright work an author … but I’m digressing again.
The lessons are fascinating, but if I wanted to learn copyright I’d sign up for a course.
Precisely. Well, the first restricted act (as the Act calls it) is copying the work, which means reproducing it in any material form. That seems to be what the artist – what’s her name, Belinda isn’t it? - has done here. It doesn’t matter for these purposes that she has made a three-dimensional version of your two-dimensional photo. Better still, she seems to have copied the whole scene, so we won’t have any arguments that she hasn’t taken a substantial part of your photo. She hasn’t done any of the other restricted acts, such as issuing copies to the public, but we don’t need anything more than the copying if you want to go after her for infringement.
Good start, though I don’t know that suing Belinda is going to be a great idea – she’s only just starting out in her career. In a few years she might be worth a lot, but at the moment she might not be able to pay me any damages.
I wondered about that – it sounds as if she might not be worth powder and shot, as my old litigation partner used to say. The gallery is another matter. The fact that it’s owned by a Russian oligarch is interesting, but don’t get too excited – I’m sure the gallery company will will be several steps removed from his personal fortune. However, I looked at its accounts on the Companies House website, and it looks as if it should be good for any damages you might be awarded against it. I suppose it also has insurance against this sort of thing, too, although ultimately Belinda is likely to find herself at the bottom of the food chain, depending on the terms on which she sold it to the gallery. But it’s not our job to worry about which of them might end up paying damages to you for infringing your copyright.
Just so long as someone does.
Right. So we need to look at what the gallery has done. It bought Belinda’s piece, for a start, but that isn’t something that copyright law controls. How much they paid will probably have a bearing on what damages you recover, but that’s a different matter and we should park that for now. Then they put it on display, but again that’s not something that the copyright owner can control – exhibiting a work of art is not like putting on a play, or performing a piece of music. But they might be committing a secondary infringement.
What’s that?
It’s a form of copyright infringement that covers what people who handle articles that are infringing copies commit, and it’s particularly useful if the articles were made abroad so it’s hard to get the manufacturer, especially now the UK is not covered by the Lugano Convention.
What’s that?
Oh, it’s an international agreement on jurisdiction and judgments – I thought perhaps you were showing your disapproval for the UK losing its benefits when you went on the anti-Brexit demonstration. I hear there were thousands of commercial litigators there for that reason. Anyway, the point is that the gallery possesses Belinda’s piece in the course of its business, which can amount to a secondary infringement. The only catch is that we still have to prove that it is an infringing copy, and then that they knew or had reason to believe that it is one. Of course that’s not a problem once we send them what we call a Protocol Letter, setting out your claim against them, but unfortunately if that is the only way we can show that they have that guilty knowledge it means your claim for damages only starts accruing when they get the letter. We might still be able to convince the judge that they ought to have known about its origin, or even just possibly that they actually knew about it, but we shouldn’t count on that.
Go on. Shall I tell you about the other photo now?
I am going on. But there’s more to say about the gallery. Who made those postcards? Because they reproduce Belinda’s piece, they necessarily reproduce yours, so someone has made copies without your consent. That doesn’t mean you can only sue the printer, because the printer got instructions from the gallery, we presume, so the gallery has committed an infringement by authorising the printer to make the copies. (We might add the printer as a defendant, but that might be a bit over the top.) And now the gallery is issuing those copies to the public, as well as committing further secondary infringements by selling infringing copies and possessing them in the course of their business. Judges don’t generally like what they call “kitchen sink” pleadings, but we might throw several claims into this.
That’s good. I am a bit worried about proving that Belinda’s copy infringed my rights, though, and as I understand what you are telling me everything else flows from that.
Why are you doubting that now? I don’t see any possible defence, unless she says she never saw your photo.
Oh, that’s the point. She certainly saw the photo, or at least I think we should assume she did, because I posted it on Instagram. Won’t she argue that when I posted it I gave up any copyright I owned in it?
Not automatically. When you post on Instagram, you allow Instagram to do certain things with your images – you grant them a non-exclusive, worldwide licence. If Belinda had reposted your posting, there would have been no infringement, and I don’t think you would have objected anyway: the whole point of posting something on Instagram (or at least part of the point) is to let others repost it. It’s still your post, with your name on it, just someone has shown it to a new audience. That’s how social media works, I suppose. But you haven’t given anyone permission to make a three-dimensional model from your photo, not just by posting it on Instagram. If it was on your own blog, we might have to look more carefully: often, people make their blogs available under a Creative Commons licence or something similar, which means that others have limited permission to use your work. Even then, it’s pretty unlikely that you would have given away the right to make the model. So you don’t need to worry about where you posted it, if that’s the only place. While I think of it, I should add that there are many things that the law says you can do with someone else’s copyright, but I don’t think any of those provisions help Belinda or the gallery, so let’s not spend time on them. There’s not much of your half hour left.
Yes, let’s move on. That’s all pretty encouraging so far, though. The second problem concerns The Daily Dog.
It would, wouldn’t it?
Indeed. Well, they approached me very shortly after the demo and asked if they could licence my photo of the arguing demonstrator and counter-demonstrator. They wanted to use it on the front page. I wasn’t happy, because I was worried about what the Dog would use my photo to illustrate. Although you couldn’t see it on that particular image, another photo shows that the counter-demonstrator had a copy of the Dog sticking out of his back pocket. I wasn’t going to allow some rabid rightwing rag to use my photo, however much they offered (and their opening offer was pretty paltry, though I am sure I could have screwed a lot more out of them, especially as they had given away that they wanted it on the front page). Next day, I saw that they had used it anyway.
“Evidence of conflict at demonstration. Time to take action against the agitators”, the headline says. No doubt about where their sympathies lie, although that’s definitely a bit ambiguous. Well, they can’t say they didn’t reproduce the picture, nor can they deny that they issued copies to the public. If it’s in their online edition, they are communicating it to the public, too. All without your permission – indeed, contrary to your express wishes. And all involving the whole or a substantial part of the photo. Best of all, this might make it a suitable case to ask the judge to award additional damages under section 97(2), reflecting the flagrancy of the infringement (they ignored your refusal to give permission) and the benefit to the Dog (which got its front page photo without paying anything).
An open and shut case!
Yes, but … The law does allow newspapers, and others, to use copyright works for reporting current events. Look, here it is in section 30(2). But don’t worry, there’s no way it will help them. For starters, section 30 allows fair dealing, and no judge is going to say use of a photo is fair dealing when the copyright owner has specifically refused permission. Also, it says they have to give an acknowledgement and I don’t see anything there crediting you. But better still, it expressly doesn’t apply to photographs – freelance photographers are basically entitled to payment every time a newspaper uses their work. So if they try to argue that section 30 allows them to do what they did, they will be laughed out of court. And of course they probably have the deepest pockets of any of the prospective defendants we have been talking about this morning.
Excellent. Is that it? I see it’s 29 minutes past now …
One more thing. You only asked about copyright infringement, so I could arguably charge you for a second consultation because strictly speaking this isn’t copyright infringement, but I can deal with it in the 50 seconds you have left. You have the right to be identified as the author of your work whenever certain things are done to it – broadly, when it is commercialised. You have to assert this right, so if it is going to be of any assistance you need to contact the parties who are using the photos and tell them to identify you, but once you have done that (and we can include it in the Protocol Letters) you should have an additional remedy against Belinda, the gallery (when it exhibits the model and when it sells postcards) and The Daily Dog. The Dog might argue that it’s a use permitted by section 30 and therefore your right to be identified does not arise, but as we have already seen that argument is a non-starter. However, I’m not sure it would be worth adding this to your claim as I doubt that a judge would add much, if anything, to the damages he or she awards, but it’s till worth bearing in mind.