The Corbys have copyrights

Various members of Schapelle Corby‘s family, like most other people who take photographs, do own copyright in the photographs they have taken and Allen & Unwin, which published 5 of their photographs in The Sins of the Father, has to pay damages for the unauthorised use of those copyrights.

Buchanan J awarded:

  • between $500 and $5,000 compensatory damages pursuant to s 115(2) for each photograph; and
  • $45,000 by way of additional damages pursuant to s 115(4) for the deliberate and studied disregard of the applicants’ copyrights.

Allen & Unwin has also been ordered to remove the photographs from its existing stocks and not to reproduce them again.

The evidence disclosed that some 44,000 copies of the book had been sold up to March 2013, from several print runs, including print runs after the proceeding commenced. The larger amounts reflected his Honour’s perception of greater commercial significance largely indicated by the accompanying text in the book. The $5,000 award was for the last photograph of Ms Corby with her father in Australia and, in addition to being used in the book, was reproduced on the back cover with relevant text.

Given the (reported) content of the book, it might seem surprising that the main defence was licence. The photographs had been given to Fairfax, not Allen & Unwin, for publication in relation to one or another newspaper article. Buchanan J found at [85]:

whatever photographs had been given by any member of the Corby family to media organisations for some other purpose, photographs had never been given by any member of the family to the respondent to reproduce. [The respondent’s publisher] accepted that no member of the Corby family had granted permission to the respondent to reproduce the photographs. It is clear that the respondent had never sought any such permission.

There was no attempt to justify any publication through a fair dealing defence but, on the other hand, Buchanan J expressly rejected any insult to the Corby family as relevant to the calculation of additional damages:

120   In the present case, I do not regard as relevant to the assessment of additional damages any criticism of the Corby family, its individual members and its associates (actual or presumed) which is to be found in the book. Those damages will not be fixed to address any perceived insult to the Corby family or any of its members but will be fixed having regard to the seriousness, amongst other things, of the studied disregard of the regime of copyright protection established by the Copyright Act. In my view, the present case suggests a need to deter the respondent and others from conduct of a similar kind.

Contrast von Doussa J’s approach to personal and cultural harm in the Milpurrurru case from [146]ff.

The decision is also our third (?) moral rights case: the authors’ moral rights of attribution being infringed. Buchanan J, however, did not award damages for this having regard to s 195AZGG(3), the unlikelihood that any of the author’s would want to have been identified as participating in the production of the book and the damages awarded for copyright infringement.

Corby v Allen & Unwin Pty Limited [2013] FCA 370

The defamation action arising from the book’s publication is still making its way through the NSW courts.

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Landmarks in Australian IP

Dr Emmerson QC (who surely needs no introduction) is going to launch the new book edited by Andrew Kenyon, Megan Richardson and Sam Ricketson – all professors well known to you on 25 March 2009.

Chapters include:

  1. Potter v Broken Hill: misuse of precedent in cross-border IP litigation by Richard Garnett;
  2. The Union Label case: an early Australian IP story by Sam Ricketson; 
  3. RPM for RPM: National Phonograph Company of Australia v Menck by (Hon.) Peter Heerey and Nicole Malone; 
  4. Horses and the law: the enduring legacy of Victoria Park Racing by Jill McKeough; 
  5. We have never been modern: the High Court’s decision in National Research Development Corporation v Commissioner of Patents by Stephen Hubicki and Brad Sherman; 
  6. Of vice-chancellors and authors: UNSW v Moorhouse by Sam Ricketson and David Catterns; 
  7. Foster v Mountford: cultural confidentiality in a changing Australia Christoph Antons; 
  8. Cadbury Schweppes v Pub Squash: what is all the fizz about? by Mark Davison; 
  9. The Firmagroup case: trigger for designs law reform by Janice Luck; 
  10. Larger than life in the Australian cinema: Pacific Dunlop v Hogan by Megan Richardson; 
  11. O Fortuna! On the vagaries of litigation and the story of musical debasement in Australia by Elizabeth Adeney; 
  12. The protection of At the Waterhole by John Bulun Bulun: Aboriginal art and the recognition of private and communal rights by Colin Golvan; 
  13. The grapes of wrath: geographical indications, international trade and the Coonawarra case by Matthew Rimmer; 
  14. Waiting for the ‘Billy’® to boil: the Waltzing Matilda case by Leanne Wiseman and Matthew Hall; 
  15. The Panel case by Melissa de Zwart.

and what IP nerd could ask for more to read as the dark cold nights of winter peek over the horizon?

Details of the launch here.

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