Monte v Fairfax Media Publications Pty Ltd [2015] FCCA 1633 [1] 

Following last year’s decision in Tylor v Sevin [2], the Federal Circuit Court of Australia has delivered another decision involving an infringement of copyright and moral rights in a photograph.

On 14 July 2013, the
Sun Herald newspaper published an article on Frank Monte under the heading “Alarm as Monte’s back on the case”. The article was highly critical of Mr Monte as described in the summary text: “Liar, cheat and unlicensed private investigator Frank Monte is again using aliases to scam unsuspecting clients”. To add further spice to the article, a semi-naked photograph of Mr Monte’s partner, Sharon Sargeant was included. Mr Monte had taken the photograph during a private shoot in a Los Angeles hotel room.

Mr Monte did not bring an action for defamation, but copyright infringement. Fairfax did not dispute subsistence of copyright in the photograph, or whether Mr Monte owned the photograph, or that the photograph was infringed by the Sun Herald. The confined nature of the dispute centred on the quantum of the compensatory, additional and moral rights damages sought by Mr Monte.

Compensatory damages

Judge Driver surveyed the various methods to calculating compensatory damages, including depreciation in value and the hypothetical licence fee approach. The court found that the licence fee approach was not available as Mr Monte would not have licensed the photograph to Fairfax in any event. Further, the court found Mr Monte had not suffered any form of economic loss and awarded nominal damages of one dollar.

Additional damages

In considering whether to award of additional damages, the court discussed the flagrancy of the infringement. Fairfax argued that the infringement was not calculated, scandalous or deceitful, but careless and no additional damages should be paid. Mr Monte contended that the publication of the photograph had caused grief to him and his partner. The court found the article was intended to “denigrate” Mr Monte and the photograph was included to “provide some spice” and “increase the readership”. The court accepted that Mr Monte and Ms Sargeant were highly embarrassed by the publication of the photograph and the circumstances warranted the awarding of additional damages.

In assessing the quantum of additional damages, Fairfax submitted it should be a modest sum and nothing like the $45,000 awarded in Corby v Allen & Unwin for publication of unpublished photographs. [3] Fairfax contrasted the circumstances of that case, where photographs were included in a book with a long publication currency, to the present one where a single photograph was published in a newspaper with limited readership life and the photograph had been removed from the online edition of the newspaper. The court agreed that the award of additional damages should be less than those awarded in Corby, but more than nominal and awarded $10,000 to Mr Monte.

Damages for breach of moral rights

Mr Monte provided evidence the publication of the photographs made him “angry and upset” and that he would not want to have been connected with the publication of the photograph. The court noted the similarities with Corby where the photographer in that case also would not have wanted to be connected with the publication of the photograph and any hurt or embarrassment suffered was in their capacity as a family member, not as a professional photographer. The court found no evidence that Mr Monte was injured in any professional calling as a photographer and did not award any amount for breach of moral rights.

Comment

Moral rights are relatively new in Australian copyright law, having been introduced into the Copyright Act in 2000. This very confined decision adds to a slowly growing jurisprudence on moral rights infringement in Australia. The moral rights cases that have ended up in court have involved interesting characters and facts and this case is no different. In Perez v Fernandez [4] the Cuban-American rapper Pitbull’s moral right of integrity was infringed by a Perth DJ. In Corby, various members of Schapelle Corby’s family’s moral right of attribution was infringed by Allen & Unwin.

[1] https://jade.barnet.com.au/Jade.html#!sy=403804

[2] http://www.austlii.edu.au/au/cases/cth/FCCA/2014/445.html

[3] http://www.copyright.org.au/acc_prod/ACC/News_items/Corby_family_awarded_damages_for_infringement_of_copyright_in_photos.aspx?WebsiteKey=8a471e74-3f78-4994-9023-316f0ecef4ef

[4] http://www.copyright.org.au/acc_prod/ACC/News_items/A_case_involving_the_moral_right_of_integrity.aspx?WebsiteKey=8a471e74-3f78-4994-9023-316f0ecef4ef