In a recent decision, Fairfax has been ordered to pay a photographer $10,001 damages for breach of copyright in a single photo. Mr Frank Monte has worked as a private investigator. He was both alarmed and embarrassed to see an article about him in Fairfax Media's Sun Herald newspaper, illustrated by a photo of both himself and of his partner, Ms Sharon Sargeant
The Court described the photo of Ms Sargeant – which Mr Monte had taken – as "suggestive of professional sexual activity". The court also noted that Ms Sargeant had used the photo with her Twitter account to advertise her professional services as an escort, in association with a description of herself as "super sexy MILF". Apparently, prior to the publication of the photo in the Sun Herald, neither Ms Sargeant's family nor children were aware of this aspect of her life
Fairfax did not dispute that copyright had been infringed, but did dispute that it should pay damages. It also disputed (if damages were payable) how much such damages should be
The Court held that:
- given that Mr Monte would not have licensed the photo at any cost, only nominal compensatory damages of $1 were payable (in particular, the court noted that Mr Monte produced no evidence of having suffered any financial loss as a result of Fairfax's use of the photo); and
- the embarrassment and grief Mr Monte suffered from the context in which the photo was used – to spice up the article – was a proper basis for an award of "additional (or "aggravated") damages of $10,000.
The Court also found that, because Mr Monte did not want to be associated with the photo, Fairfax was not liable to pay Mr Monte any damages for any infringement of his moral rights
The case is available at: http://www.austlii.edu.au/au/cases/cth/FCCA/2015/1633.html If you would like advice in relation to copyright in photographs, contact copyright lawyer Adam Simpson or Ian McDonald (Special Counsel) at Simpsons Solicitors.