Trade Mark News & Information

Trademark Lawyers Australia – Federal Circuit Court – Tylor

Tylor v Sevin [2014] FCCA 445 (26 February 2014)

This is a timely reminder of the risks in not properly sourcing photographic content for use on websites.

Ms Sevin uploaded a photograph taken by Mr Tylor for use on her travel agency business to promote Hawaii as a destination. She did not obtain a licence to use the photograph or give any attribution to Mr Tylor’s moral rights. The judge was satisfied Ms Sevin used the photograph without making any reasonable enquiry as to the ownership or authorship of the copyright in the photograph and was, in all probability, in reckless disregard of it.

The judge commented 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, or in many cases, that they do need a licence for an image which they may feel to have been in common use. That is not to condone what has occurred. This case will be important because, through it, it will be made clear that this conduct cannot continue.”

 Ms Sevin failed to properly respond to Mr Tylor’s allegation of copyright infringement. She initially suggested this problem was due to her web designer and made no effort to apologise, take down the offending photograph, or offer to pay a licence fee for its use. Indeed, she took no part in the proceedings and “cocked a snook” at the court.

The judge awarded damages of US$1850 (reflecting the lost licence fee) and a further amount of AU$12,500 (due to Ms Sevin’s conduct). Mr Tylor was also awarded his legal costs in the amount of AU$9,500.

Although it is rare for these types of cases to actually get to court (because legal costs typically exceed recoverable damages and costs) and this was an ex parte judgment, it does show courts are willing to do what they can to assist copyright owners to maintain their property and prevent the unlawful use of it.