When chamomile did not have a calming effect on the Court - Briner v The Happy Herb Company & Ors [2017] FCCA 1854

20 September 2017


The applicant is a US-based photographer who sought declaratory and injunctive relief as well as damages and costs for the infringement of copyright in a photograph (the ‘photograph’.) The photograph was of a chamomile herb.

The respondents used the image on their website without seeking a licence. In October 2015, the applicant notified the respondents, that they had used his photograph without his authorisation and requested a licence fee of USD$1,180 be paid to him for the unauthorised use of his photograph and failure to attribute him as the photographer.

The Dispute

The applicant made a claim for damages under ss 115(2), 115(4) and 195AZA of the Copyright Act 1968 (Cth) in relation to the copyright infringement of his work. The applicant argued that he should be awarded the standard licence fee for the use of his work, comparing his licence fee to the cost of a licence fee for an image obtained by Getty Images. The applicant also argued that the photograph appeared on a website that is corporate and promotional, thus making the fee for the use of the photograph higher than the use a commercial image on Getty Images. The respondents’ argued that the use of the photograph was only to illustrate general information about a chamomile herb and any photograph of the herb would have been sufficient to use.

The Decision

The court found that the applicant was the owner of the work and that the respondents had used the applicant’s photograph on their website without his permission. The court found that the applicant had no claim for damages in relation to a breach of moral rights as the respondents were unaware of who owned the copyright in the photograph as it had been placed on their website in 2013 by an employee or contractor. A further consideration in the court's decision was that the respondents had also acted promptly in removing the photograph upon learning that the applicant was the owner of the photograph.

The court awarded the applicant AUD$500 for the infringing use of his photograph on the respondents’ website and a further AUD$1,000 in additional damages to the applicant to provide as a deterrent against other reckless or careless use of copyright works.

This case demonstrates that there may be a risk of copyright infringement when downloading images from the internet.

It is interesting to note that the award of damages is far less than would have been available under the statutory damages system in the US.

It is also interesting that the court declined to award damages for breach of the applicant's moral right of attribution.

See our information sheets Permission – Do I Need it? and Permission – How to Get It.

Link to the decision: Briner v The Happy Herb Company & Ors [2017] FCCA 1854.