Copyright and Moral Rights
Written by Michael Coyle on 02 June 2012« Return to Reading Room
Emma Delves-Broughton v House of Harlot. Moral rights, Copyright and The Patents County Court.
The fact of the case
The claimant was a professional photographer. She took a photograph of a model in a forest wearing a garment supplied by the defendant. The photograph was taken with a forest background. The claimant then passed the photo onto the model saying she could use it for her own purposes. The model than gave the photo to the defendant so they could post it on their website, which they did however they changed the background and used the altered image multiple times on their website.
This main legal issue
The claimant argued that the use amounted to copyright infringement and the derogatory treatment of her work. It was therefore up to the judge whether it amounted to a copyright infringement or any derogation to the claimant's work.
The judge decided in favour of the claimant on the above two points and rejected the defence that the defendant had a licence to use the photo due to the discussions between the claimant and the model and that the changes made did constitute derogatory treatment. He held that the significant change to the background was derogation not mutilation and it did not greatly affect the honour or reputation of the claimant.
Reasons given for the judgment
The above judgments was given on the basis that the judge found implausible that the conversation between the claimant and the model had amounted to the claimant giving the defendant a licence to use the picture. Especially as the model's witness statement and her oral evidence was inconsistent. The judge preferred the evidence of the claimant and found that she had granted no such licence to the defendant.
And even thought the photo was used many times on the website it was held that there that there had only been a single use: on the website and the amount of times it was on there was irrelevant.
The remedies awarded by the judge
The judge recognised that a lot of effort was made on behalf of the claimant with regards to the composition of the image particularly the background, due to artistic reasons. With regards to this the judge decided to award damages even though the primary remedy would be an injunction, but there was no need for this as the defendant had already removed the photo from the website. The damages amounted to £50 for derogatory treatment and £675 for the infringement claim.
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