The hazards of using the Internet to source promotional images

Co-authored by Peter Heerey AM, QC, Tom Cordiner & Alan Nash

Correspondents for South Australia, Victoria and Western Australia

Note:  Where any of the barristers were involved in a case reported below and the matter is still running, or potentially so, the other correspondents have taken the role of reporting that case.

Tyler v Sevin  [2014] FCCA 445

Mr Tyler is a Hawaii based photographer who sells and licenses his works as stock photographs.  The respondent is a travel agent whose business is conducted over the Internet.  She used one of Mr Tyler’s photographs without obtaining a licence from him, and rather than take down the image when confronted with her conduct sought to blame an unnamed web developer.

Ms Sevin did not file a defence or otherwise participate in the proceedings.  The copyright infringement claim was straightforward, and Mr Tyler was awarded US$1,850 (reflecting his usual licence fee).

In relation to Mr Tyler’s claim for additional damages, his Honour felt that the flagrancy of the infringement was at the lowest end of the scale, and noted that it “would not be unreasonable to say that there are many people utilising images for which they have no licence, without realising the gravity of the situation”.  His Honour went on, however, to signal that the present case “will be important because, through it, it will be made clear that this conduct cannot continue”.  He awarded Mr Tyler a further $12,500 in additional damages and costs of $9,500, both of which eclipsed the general damages award.


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