Judgment in the case of Emma Delves-Broughton v House of Harlot Ltd has recently been published. This was a rare case addressing infringement of a photographer’s moral rights.
The Patents County Court (PCC) ruled that changes made to a photograph amounted to derogatory treatment of the claimant’s work under section 80 of the Copyright, Design and Patents Act 1988.
Background
The defendant published on its website a modified version of a photograph taken by the claimant in 2005. The original photograph depicted a model in a forest setting. The defendant made a number of changes to the image before publication, including the removal of the forest background, reversal of the image and cropping. The modified image was subsequently used on a number of the defendant’s web pages over a six month period.
The claimant sued for copyright infringement, claiming that the defendant had published the photograph without her permission. Additionally, the claimant complained that the defendant had infringed her moral rights by subjecting her photograph to derogatory treatment. Section 80 provides that:
“The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right in the circumstances mentioned in this section not to have his work subjected to derogatory treatment.”
Subsection (2)(b) defines derogatory treament as follows:
“The treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director.”
Decision
Mr Recorder Douglas Campbell found the defendant liable for copyright infringement on the basis that no licence had been granted by the claimant for its use of the photograph.
On the photographer’s right to object to derogatory treatment of her work, the judge found that considerable time and effort had gone into the composition of the original photograph. The forest background which appeared in the photograph had been important to the photographer for artistic reasons. The judge was therefore satisfied that the changes which had been made by the defendant amounted to a distortion of the work. The judge noted that the changes did not amount to mutilation and were not prejudicial to the honour or reputation of the photographer, but he was nevertheless satisfied that the treatment of the author’s work in this way was derogatory.
The claimant was awarded £675 for copyright infringement based on the defendant’s publication of the photograph for six months. This figure was derived from National Union of Journalists guidelines which have been accepted by the PCC on a number of occasions as evidence of market rates for photographic licence fees.
The judge declined to award more than £50 for derogatory treatment, having regard to the damages already awarded for copyright infringement. The judge also noted that the primary remedy for the right to object to derogatory treatment is normally an injunction.