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Copyright and Photographers

Written by Jeremy Liu on 01 September 2012

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Tyson Sadlo, a professional photographer, was asked by a company called Oxygen 10 Limited to conduct a photo-shoot of business woman Karren Brady. The photographs were intended for publication in Today's Business Woman, an Oxygen 10 publication. Sadlo had granted syndication rights to Celebrity Pictures Limited. Celebrity Pictures and Sadlo allege infringement of copyright by B Hannah Limited, a company in the same group as Oxygen 10, after they published the photographs in the BUPA Health Magazine and on the Celebrity Angels website.

At the time of the shoot, Oxygen 10 operated as a separate company from B Hannah at a separate address. After the shoot, the lease of the premises of Oxygen 10 ended. The operations of both Oxygen 10 and B Hannah were conducted from the same office in Camden, London. Oxygen 10 then ceased trading and the company was dissolved.

B Hannah contended that it owned, or at least, jointly owned the copyright. B Hannah expressed this to be the case as it had taken over Oxygen 10's business after its dissolution. The claim to ownership arose out of a written document alleged to have been sent to Sadlo. The contract stipulated that by accepting the assignment the photographer agreed to worldwide exclusivity in favour of Oxygen 10. It included a further term that "the image rights belong solely to Oxygen 10". If this document was received by Mr Sadlo, its terms would be sufficient to defeat the claim to infringement. The receipt of the contract by Sadlo of the contract became the principal issue in the action. B Hannah also held that there is an implied term to the same effect as the express term.

Joint authorship

Oxygen 10 Limited asserted to Sadlo which photos they were after. However, this turned to be the full extent of their input. Under the test in Creation Records Limited v News Group Newspapers Limited [1997] EMLR whilst they may have been involved in setting up the studio they had no role in choosing "the camera angles and settings and the control of the scene at the instant at which the photograph is taken."

The result is Oxygen 10 could not be joint owners of the work. It also follows B Hannah were not joint owners of the photographs.

Express terms

B Hannah attempted to rely on a contract that Oxygen 10 purported to have sent to Sadlo. Sadlo claimed not to have received a contract; if he had done then he would not have proceeded with the shoot. Oxygen 10 could not prove the contract had been sent. The normal protocol was to email this, but in this case they had failed to do so and claim the contract was sent by post, however, there was no evidence this happened. Judge Floyd was unenthusiastic on Oxygen 10's stance because there was no explanation for why the letter had not been emailed like usual and after repeated attempts requesting a copy of the contract by Sadlo, B Hannah failed to supply one.

Floyd concluded the evidence failed to show the contract was sent and there was no express term assigning the copyright to B Hannah.

Implied term

B Hannah also argued, without the express term in the contract, there was an implied term of the employment of Sadlo that he would agree to assign the copyright to Oxygen 10. However, Floyd found no reason to imply a term which would see copyright transferred to the defendant. It was not established that the parties had any wider use in mind at the time other than the photos would be published in Today's Business Woman.

Infringement

Oxygen 10 had ceased trading prior to the allegedly infringing use, but Floyd ruled that the B Hannah were liable for these infringements. Sadlo had been requested to redirect his invoice to B Hannah as they had "changed all the payment(s) over to one account as Boston Hannah" suggesting B Hannah would be responsible for Oxygen's future dealings. Furthermore, the photographs being authorised by B Hannah Ltd to be used in the BUPA magazine, as Oxygen 10 had ceased trading left no doubt B Hannah were primary infringers.

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