The unlicensed use of a single photograph of camomile flowers has cost a herbal products company $1,500, after the Federal Circuit Court found that the company's actions not only infringed copyright, but justified an award of additional damages to deter against 'reckless or careless' use of copyright works.
An employee or contractor of The Happy Herb Company located the impugned photograph on the internet and used it on the company website for a little over two years. Given that the photograph had been created in the US by the applicant, Mr Briner, copyright subsisted in the work by virtue of the Copyright International Protection Regulations 1969 (Cth).
Judge Driver accepted that the company had no idea the work was protected by copyright and that it was used only to 'illustrate general information about the camomile herb'. Indeed, evidence before the Court was that the second respondent, a Mr Thorpe, had initially thought Mr Briner's claim for USD$1,180 to be a scam.
In assessing damages, the Court adopted the usual course of looking to the quantum of the owner's usual licence fees and awarded $500 by way of compensation. No sum was awarded for breach of moral rights.
Relying on the case of Tylor v Sevin [2014] FCCA 445 (where the Court awarded additional damages of $12,500 for the unlicensed use of an image in circumstances of comparably greater flagrancy) here Judge Driver awarded $1,000 under s 115(4) of the Copyright Act, almost solely for deterrence purposes and in circumstances where:
- the company took down the photo as soon as an assertion of copyright was made by Mr Briner;
- undertakings were given shortly after proceedings were commenced;
- the use of the photograph was incidental to its business; and
- while Mr Briner argued that the respondents had failed to comply with certain interlocutory orders made previously by the Court, Judge Driver found that the non-compliance was an 'inadvertent failure made by self-represented litigants' and promptly corrected.
His Honour pointedly observed that:
Persons downloading photographs from the internet should recognise that there may be a risk of copyright infringement and, once notified of an infringement, they should act promptly and reasonably in order to arrive at an appropriate fee as compensation for the use of the Work. The awarding of additional damages provides a deterrent against other reckless or careless use of copyright works.
Against a background of widespread copying and communicating of copyright-protected images on the internet, this decision signals that courts expect parties to negotiate an appropriate licence fee once put on notice of copyright and, even if the infringing party otherwise acts as a model defendant, additional damages may be awarded simply to warn others against irresponsible practices.