July 14th, 2015
Dave Williamson in Perth, AU has been engaged in a copyright dispute/misunderstanding since January of this year. This was a typical real estate photography dispute about listing photos being used by an agent different from the one they were licensed to. I wanted to highlight this decision because it helps to have clear resolved example of this issue. Note that this is an Australian case, but laws are very similar in NZ, US, CA, and EU.
The full story and 7 months of related discussion is here in the PFRE Flickr discussion group. Dave shot the photos for one agent, another agent took over the listing and when Dave ask the second agent to either pay to relicense the photos or stop using them they ignored him. Dave then took action in Small Claims Court in January 2015 and a magistrate just ruled on the case a few days ago. Here’s Dave’s description of the decision towards the bottom of the first page of the Flickr discussion:
It was all about copyright and it all hinged on the interpretation of one particular section in the Copyright Act. The magistrate said that because there was no contract between me and the defendant (the second agent), an invoice was not appropriate but it was used to determine how much was awarded to me. In the witness stand, I outlined what happened and why I thought I was the copyright owner. The legislation here in Australia says basically the person taking the photo is the copyright owner but there are 3 situations where that changes. The first is where it’s taken for a newspaper, magazine or other publication (which doesn’t apply here), the second is where it was commissioned by someone with the intent of being used for private or domestic purposes (which was the “out” being used by the plaintiff) and the third is where it’s taken in the course of one’s employment (which also doesn’t count here). All the agent could come up with was “the owners paid for it, therefore they own the photos”. He mentioned the second exclusion and the magistrate immediately (to his credit) asked him why he believed it was taken for private or domestic purposes (as opposed to for commercial purposes). He stumbled around trying to avoid that question, instead repeating “but the owners paid for them!”. You had to be there to appreciate how rapidly his whole argument disintegrated! I had to suppress laughing out loud. The magistrate retired to consider the verdict and came back to award me the ten-times-the-normal-rate I had outlined in my case (per my web site) for breach of copyright, plus court costs (court fee, service fee and travel fee). So, I did my research and referred heavily on the Act while he relied on “someone pays, therefore it’s theirs”…
Dave points out that this is the first incident like this that’s occurred to him in 5000 shoots so this is not an everyday occurrence for him. As jadave in the Flickr discussion says, “the next time this happens Dave can just send the offending agent a copy of the ruling”.
Good job of hanging in there Dave. It’s important to go through this hassle once in a while to make sure that agents in your market understand what the law is!