Trade Mark News & Information

Trademark Lawyers Australia – Federal Circuit Court – Monte

Monte v Fairfax Media Publications Pty Ltd [2015] FCCA 1633 (7 August 2015)

Fairfax was ordered to pay $10,001 as damages for breach of copyright in publishing a photograph of Ms Sharon Sargeant, the partner of Mr George Monte who owned copyright in the photograph published as part of a story critical of Mr Monte.

 Judge Driver awarded nominal damages of $1 because Mr Monte would not have given a licence to Fairfax to publish the photograph and Mr Monte gave no evidence of suffering any other form of economic loss. However, when deciding whether additional damages should be awarded, the judge considered the publication of the photograph was intended to catch the reader’s eye and to provide some spice to the article at the risk of embarrassing Mr Monte and Ms Sargeant, even though the same or very similar photograph had previously been legitimately published elsewhere on Ms Sargeant’s Twitter account and on her website promoting her escort service business. Consequently, an award of $10,000 in additional damages was made.

 There was no order for damages for breach of moral rights due to the failure to attribute Mr Monte as the author of the photograph. Mr Monte could not have suffered loss for non-attribution in circumstances where he would not have wanted his name to be connected with the photograph and there was no evidence Mr Monte has been injured in any professional calling as a photographer.