On 24 April, the Federal Court awarded damages to the family of Schapelle Corby, for unauthorised publication of their photographs in a book about her.

THE CASE

The court’s decision concerned both infringement of copyright and moral rights arising from the inclusion of five photographs in the book. The book was written by a Fairfax journalist, who had previously written news stories about Schapelle Corby.

Various members of the Corby family owned copyright in the photographs. Some had been previously published. Four of the photographs were in the Fairfax archive, and the book’s author had acquired copies from there, but ‘informally’ rather than under any licensing arrangement. One of the photographs was previously unpublished.

The main issue in the case was whether the publisher had permission (a licence) to publish the photographs in a book. This turned on whether the book’s author had ‘indirect’ permission to authorise publication of each of the photographs.

COURT’S FINDING

The court found that in this case the publisher had not followed its own processes for ensuring copyright clearances are obtained directly by it or by its contracted authors. To the contrary, the court found that the publisher had made a deliberate decision to not seek the necessary clearances.

The court rejected the publisher’s argument that damages should be limited because it was not aware that copyright had been infringed, partly because the publisher had reprinted the book after commencement of legal proceedings (the publisher has sold more than 44,000 copies of the book).

REMEDIES FOR COPYRIGHT INFRINGEMENT

The court ordered:

  • that the copies of the book in the publisher’s possession be destroyed;
  • compensatory damages for each photograph, ranging from $500 to $5,000; and
  • ‘aggravated’ damages for the publisher’s ‘flagrant disregard’ of the Corby family’s copyright interests of $45,000.

FAILURE TO ATTRIBUTE

The Copyright Act requires attribution of the ‘author’ of a work, unless it is ‘reasonable’ not to, or the author has consented to not being attributed. None of the photographs were attributed. The court held that the actions of the author and the publisher were not reasonable, and did not follow any industry practice. They chose not to make enquiries about attribution.

The court made a declaration that the authors’ moral rights had been infringed, but did not award any damages additional to those already awarded for copyright infringement. The court declined to order an apology from the publisher for breach of moral rights, as it did not think this reflected the wishes of the Corby family.

Postscript: