Photographer Tyson Sadlo did a photo shoot of the sports executive and TV personality for Oxygen 10’s “Today’s Business Woman” magazine. Sadlo sued when the pictures appeared in BUPA Health Magazine and the “Celebrity Angels” website after Oxygen went bust. Sadlo had no signed contract with Oxygen 10. Jonny Mayner reports.
Topic: Photographs
Who: Celebrity Pictures Limited; Tyson Sadlo (an individual); B Hannah Limited; Oxygen 10 Limited (dissolved)
When: July 2012
Where: UK
Law stated as at: 30 July 2012
What happened:
The Patents County Court has ruled in a dispute over ownership and infringement of the copyright in photographs of the sports businesswoman and TV personality Karren Brady. Ms Brady was not herself a party to the proceedings.
Tyson Sadlo, a professional photographer, was engaged by Oxygen 10 Limited to conduct a photo-shoot of Ms Brady in July 2010. The resulting photographs were to be published in Oxygen 10’s magazine Today’s Business Woman. Mr Sadlo subsequently granted syndication rights to Celebrity Pictures Limited. Oxygen 10 was dissolved shortly after the photoshoot as a result of failing to file accounts.
During 2011, B Hannah Limited, a company in the same group as Oxygen 10, authorised publication of the photographs in the BUPA Health Magazine and on a website called Celebrity Angels. Celebrity Pictures and Mr Sadlo brought a claim in the Patents County Court against B Hannah for infringement of their copyright in the photographs.
The defendants did not dispute that the photographs published in the BUPA Health magazine and the Celebrity Angels website were reproductions of the photographs taken by Mr Sadlo during the photoshoot with Ms Brady. B Hannah did however contend that Mr Sadlo had assigned his copyright in the photographs to Oxygen 10. A number of issues were discussed during the hearing of the case before Mr Justice Floyd, including:
- whether or not the photographs had been jointly authored in view of certain input from Oxygen 10 staff;
- whether or not a contract under which Mr Sadlo would have assigned his copyright in the photographs to Oxygen 10 had ever been sent to Mr Sadlo; and
- whether, in the alternative, an implied term that Mr Sadlo had agreed to such an assignment could be imposed.
Joint authorship
Section 9(1) of the Copyright Designs and Patents Act 1988 provides that the author of a photograph is the person who creates it.
Before the photoshoot Mr Sadlo had received from Oxygen 10 a general memo indicating the type of photographs that were required, and two Oxygen 10 employees were present during the photoshoot.
In clarifying who had “authored” the photographs in question, and therefore who first owned the copyright in them, Justice Floyd held that the input of Oxygen 10 staff members into the conduct of the photoshoot was not sufficient to make anyone other than Mr Sadlo the author of the photographs.
Reiterating the position set out in Creation Records Limited v News Group Newspapers Limited [1997], Justice Floyd made it clear that “it is the creativity involved in creating the photograph which is the subject of the copyright”.
The contract
B Hannah contended that a contract under which Mr Sadlo would have assigned to Oxygen 10 worldwide exclusive rights to the photographs was sent to Mr Sadlo before the photoshoot. Mr Sadlo’s position was that he would never have conducted the photoshoot if he had seen a contract with those terms.
Neither of the relevant Oxygen 10 staff members were called to give witness evidence, leaving a director of both Oxygen 10 and B Hannah to give evidence in general terms about what should have happened, and what typically happens in the course of engaging a photographer.
Justice Floyd found the witness evidence on both sides to be less than satisfactory and instead engaged in an analysis of the available email correspondence between the parties to ascertain what had been agreed. He found that there had been no express mention of a contract, and there was no record of the contract having been sent to Mr Sadlo. Accordingly, there were no express terms by which Mr Sadlo had assigned his rights in the photographs to Oxygen 10.
B Hannah argued that even in the absence of a signed contract, terms relating to assignment of copyright should be implied into the contract between Oxygen 10 and Mr Sadlo.
Justice Floyd reiterated the position on implied terms per the ruling in Robin Ray v Classic FM PLC [1998], stating “if a court does imply a term, it should make no greater incursion into the rights of the copyright owner than is necessary to meet the case: the minimalist approach”.
In the judge's view it had not been established that the parties had any wider use for the photographs in mind beyond publication in Today’s Business Woman. Accordingly, there was no compelling reason to imply an assignment of the copyright from Mr Sadlo to Oxygen 10.
Infringement
There was no dispute as to whether the photographs which were published in the BUPA Health Magazine and the Celebrity Angels website were reproductions of the photographs of Ms Brady taken by Mr Sadlo. It was however disputed that B Hannah was primarily liable for infringement of the copyright in the photographs by authorising their re-publication. B Hannah contended that the now-dissolved Oxygen 10 was solely responsible.
Justice Floyd found however that all of the infringing acts took place in 2011 after Oxygen 10 had ceased trading and it was clear that everything was by that time under the control of group company B Hannah.
Why this matters:
This case is a useful reminder to publishers, professional photographers and other businesses in the media sphere of the importance of agreeing clear terms, in advance, covering the ownership of copyright in commissioned photographs, and indeed other works protected by copyright. In particular, the following points are worth noting:
- first ownership of copyright in a photograph is not always a clear cut matter. Where a degree of collaboration has occurred, the resulting photograph may be a jointly authored work (although this was not the case here);
- the courts are reluctant to imply assignment terms into a contract between photographer and commissioning publisher. Where there is no clear indication that the parties intend any further use for the photographs there will likely be no compelling reason to imply a term that deprives a photographer of his or her first ownership of the copyright in the photographs;
- It is vitally important to ensure not only that contracts governing ownership of copyright are written, agreed and signed, but that proper records are kept of such contracts. Where a signed copy of a contract cannot be produced, records proving that drafts have been sent and received will obviously carry more evidential weight than witness evidence regarding best practice or policies which seem not to have been followed.
