The “House of Harlot” website (don’t ask) displayed a cropped version of a photo taken by one Emma Delves-Broughton of a model in a forest wearing a House of Harlot garment (again don’t ask). But there was no consent from Emma. Dr Catherine Lee reports on the ensuing copyright and moral rights case.
Topic: Intellectual property
Who: Ms Emma Delves-Broughton (professional photographer) and House of Harlot (clothing company).
What: Emma Delves-Broughton v House of Harlot (18 May 2012) (unreported)
Where: Patents County Court
When: 18 May 2012
Law stated as at: 1 June 2012
Ms Delves-Broughton took a photograph of an unnamed female model in a forest wearing a garment supplied by the House of Harlot. Ms Delves-Broughton gave a copy of the image to the model with a letter which only granted the model permission to use the image on her own website for personal use. If anyone else wanted to use it, the model should let Ms Delves-Broughton know. The model, however, presented the image to the House of Harlot, which then proceeded to modify the image by reversing it and removing the forest background. It then put this second image on its website.
When Ms Delves-Broughton complained, the House of Harlot promptly took down the second image. Ms Delves-Broughton then commenced proceedings for: (a) copyright infringement; and, (b) derogatory treatment of her work under section 80 of the Copyright, Designs and Patents Act 1988. The House of Harlot responded by arguing that: (a) it had a licence to use image by virtue of subsequent oral discussions between the model and Ms Delves-Broughton; and, (b) the changes it made to the image did not constitute derogatory treatment.
The matter came before Recorder Douglas Campbell in the Patents County Court who decided in favour of Ms Delves-Broughton on both claims.
In respect of the claim of copyright infringement, he found that it was inherently implausible that Ms Delves-Broughton and the model had a discussion during the shoot to the effect that the House of Harlot was granted a licence to use the image. He was critical of the credibility of the model, particularly as her oral evidence (that a licence to the House of Harlot was granted) went further than her witness statement (which reiterated the understanding outlined in Ms Delves-Broughton’s letter outlining use of the image). He preferred the evidence of Ms Delves-Broughton and found that she had granted no such licence to the House of Harlot.
On the issue of damages for infringement, the fact that the image had appeared on eight pages of the website did not mean that there were eight uses for damages purposes. The judge stated that there had only been a single use: on the website. He followed the guidelines set out in the National Union of Journalists and awarded £675 for the infringement claim.
In respect of the claim of derogatory treatment of the work, Douglas Campbell noted that considerable time and effort had done into the composition of the image and that it had been important for the forest to appear for artistic reasons.
Accordingly, he found that the changes amounted to distortion, but not mutilation, and were not prejudicial to Ms Delves-Broughton’s honour or reputation. Nonetheless, there was a distortion and therefore derogatory treatment of the work.
On the issue of damages for derogatory treatment, taking everything into account, the court awarded £50 damages. Normally the primary remedy in such cases was an injunction, but that remedy was inappropriate in the present proceedings as the House of Harlot had already removed the photograph from its website.
Why this matters:
The case emphasises that copyright infringement is a strict liability claim. Initially the House of Harlot tried to argue that it was not aware that the model was not in a position to grant a licence to use the image and therefore could not be liable. This was irrelevant: the cause of action did not require Ms Delves-Broughton to show that the House of Harlot knew that it was doing anything wrong. The questions were whether the House of Harlot had reproduced the image and whether it had consent from Ms Delves-Broughton. If the House of Harlot did not have consent from Ms Delves-Broughton, then its conduct constituted copyright infringement.
The case is also useful for its factual finding that the House of Harlot through its changes had distorted, but not mutilated, the image for the purpose of assessing whether there was derogatory treatment. The fact that the treatment was not prejudicial to Ms Delves-Broughton honour or reputation was reflected in the low award of damages.