The Australian Federal Circuit Court has ordered the Happy Herb Company pay $1500 to US photographer Mike Briner, after the Australian company used an image without permission or licence on its online blog.
The online copyright infringement in this case is a common example for photographers. The case proves online infringement is never ‘too small or insignificant’ to warrant compensation or be heard before the court. Photographers may find this article, and particularly the court papers (bottom of article), useful background when negotiating a licencing fee for an image used online by a business without permission.
The photo in question was of a chamomile flower, captured in 2001 by Briner. In 2013 Happy Herb Company published the photo without licence, via a third party graphic design contractor, who sourced the image from a free image database. The image was used to illustrate a Happy Herb Company blog post.
Briner sought a licence fee for US$1180 in 2015 upon discovering the illegal use. Instead, Happy Herb Company removed the photo and refused to pay the licence. They argued the fee was too large for a simple stock photo, and they weren’t aware the image had an owner.
The court shot down Briner’s attempt to claim over $1000, and found Briner’s standard licence fee is US$590, and in some instances as low as US$200.
‘Briner contends that a comparable image obtained by Getty Images would carry a licence fee of $1115. However, the right to use the image for a commercial blog can be obtained from Getty Images for $485. The higher amount of $1115 is for a corporate and promotional site,’ Judge Driver, ruled. ‘It is true that the image appeared on the website but the image was only incidentally related to the business of the company… (the photo) was only used in order to illustrate general information about the camomile herb.
‘Any photograph of the herb would have achieved the same purpose. In my view, in this case, Briner’s loss in terms of an appropriate licence fee is no more than $500 and that is the amount.’
The judge ordered Happy Herb Company pay $500 compensatory damages, and the ‘modest amount’ of $1000 in additional damages to act as a deterrent.
The Happy Herb Company founder, Ray Thorpe, clearly felt that Briner was something of a copyright troll, and he had right on his side. He released a press release stating he’d ‘take a stand against this injustice’ and the case was part of ‘an industry… exploiting copyright law to extract extortionate fees that are well beyond fair market value’. He said the court case would cost him upwards of $50,000 in legal fees.
‘If we win and we expect to, as that would be fair and just. However the public will lose instead because this story will end there. The case will be lost for the public good as it will not reach the level of publicity to raise awareness of this awful copyright trap,’ Thorpe said. ‘But then if we lose we will carry this fight to the High Court for the sake of the Australian public.’
In deciding the damages, the judge accepted that Happy Herb Company wasn’t aware of the infringement, and it couldn’t identify Briner as the copyright owner – meaning no damages could be awarded for a breach of moral rights.
Briner admitted that this particular photo has been widely distributed online without his authority, and the judge concluded that this is how the image ended up on the Happy Herb blog.
‘It is a pity that it has taken a contested hearing in order to provide Briner with appropriate compensation for the use of the work,’ Judge Driver said. ‘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.’
But the judge was also exasperated that the matter came to court in the first place: ‘It seems to me that with a little more goodwill on both sides, the parties could have properly settled on or around the figure of AUD$500 compensation, which I have awarded above,’ he said.
The case also cited Tylor v Sevin from 2014, which also involves an Australian business infringing the copyright of an American photographer.