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Don’t Assume that Photos Posted on the Internet Are Free to Use

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

There is a tendency to believe that photographs and other copyright works posted on the Internet are free for anyone to use as they wish. One case concerning a classic photograph of poet Dylan Thomas proved how very mistaken that assumption is.

The photograph of the Welsh bard was taken in 1937. Copyright in the image was owned by the person who took it and passed to his widow on his death. She later assigned it to a company. The copyright expired in 1987, but was assumed for the purposes of the case to have revived in 1996, pursuant to the Duration of Copyright and Rights in Performances Regulations 1995.

The company launched breach of copyright proceedings against a businessman who had, without permission, used the photograph on a website that advertised holiday cottages in Wales. Following a trial, he was ordered to pay £250 in damages, that sum representing the judge’s assessment of what the company could reasonably have expected the businessman to pay for the use of the photograph.

In challenging that decision, the company argued that the award should have been far higher and that the businessman should have been ordered to pay additional damages under Section 97(2)(b) of the Copyright, Designs and Patents Act 1988 on the basis that the breaches were flagrant. In dismissing the appeal, however, the court could find no error of principle in the judge’s approach to the case.

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