Using stock photos may infringe copyright
13 November 2014
The case of Taylor v Sevin  FCCA 445 was the first of its type to be considered by the Federal Circuit Court. It related to the unlicensed use of stock photos on a commercial website.
The applicant was an American photographer who lived in Hawaii and conducted a business of taking, selling and licensing stock photos that could be used for a variety of purposes, for example, used in a generic form in advertisements and on websites.
The Internet has made it extremely easy for anyone to locate a stock photo on a website where an appropriate licence fee has been paid and to then copy that stock photo and use it on a website where no licence fee has been paid.
The respondent was a travel agent based in Melbourne. In publishing a list of flights available from Melbourne to various places around the world on her website, the respondent used a photograph taken by Mr Taylor of a beach in Hawaii.
The Court was satisfied that the Applicant owned the copyright to the photograph. Although copyright protection in Australia is automatic, the United States has a system of registering copyright. The applicant provided a copy of his certificate of registration of copyright in the photograph.
The owner of copyright in an artistic work is granted a number of exclusive rights under s. 31 of the Copyright Act 1968 (Cth). These include the exclusive right to reproduce the work in a material form, publish the work and communicate the work to the public.
The Court noted that while “[i]t would not be unreasonable to say that there are many people utilising images for which they have no licence, without realising the gravity of the situation, or in many cases, that they do need a licence for an image which they may feel to have been in common use … [t]his case will be important because, through it, it will be made clear that this conduct cannot continue”.
The respondent was found to have utilised the photograph on her website without making “any reasonable inquiry as to the ownership” of the photograph and was “in all probability, in reckless disregard of it”. As such, the respondent had infringed the applicant’s copyright in the photograph. Further, since being informed of the infringement, the respondent refused to apologise for any wrongdoing or to remove the photograph from her website and also failed to offer any compensation in the form of a licence fee or otherwise.
The applicant was awarded damages of $US1850 under s. 115(2) of the Copyright Act as a result of the infringement of his copyright and to reflect the licence fee that would otherwise have been payable by the respondent.
The applicant was also awarded damages of $AUD12,500 under s. 115(4) of the Copyright Act on the basis that the Court was satisfied that the respondent’s poor conduct indicated that the infringement was flagrant and that there was a need to deter similar infringements of copyright by both the respondent and the general public.
Agencies must ensure that they take care when sourcing images or other copyright works from the Internet. Although agencies may receive the benefit of an existing agreement with a collecting society or a statutory licence under Division 2, Part VII of the Copyright Act, it is preferable for agencies to confirm their right to use copyright works before copying and using online content.
This case also indicates that if an agency receives an allegation of copyright infringement, it would be prudent for the agency to remove the relevant work while it obtains legal advice about the substance of the allegation.
The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.
Published: 13 November 2014
Author: Adam Hall