Scintilla – a flash, a spark, an iota. Shorthand for creativity and an indicator of inventiveness under Australian law.






Friday, November 7, 2014

Brothers in Arms, copyright in photographs

By Joel Barrett, Senior Associate

On Father's Day 1984, residents of the Sydney suburb of Milperra witnessed a short but violent skirmish between bitter rivals, the Comancheros and Bandidos bikie gangs. By the time police arrived, seven people were dead from gunshot wounds, including an innocent 14-year-old bystander named Leanne Walters. The incident became known as the Milperra Massacre.

The Milperra Massacre was not just a tragic event, but also a watershed in New South Wales legal history, leading to radical new gun control laws, one of the largest and longest joint criminal trials in Australia, and controversial appeals. Thirty years later, only one legal controversy remains: an unlikely claim of copyright and moral rights infringement.

The claim stems from a photograph said to be of Leanne Walters in the book Brothers in Arms: The Inside Story of Two Bikie Gangs, an account of the Milperra Massacre and surrounding events that was published by Allen & Unwin in 1989. On 1 April 2014, 25 years after first publication, Janette Francis commenced proceedings in the Federal Court against Allen & Unwin (and several other parties) alleging that the photograph does not depict a 14-year-old Leanne Walters, but rather herself aged 27. She claims that she took the photograph of herself in a shopping centre photo booth, and that the respondents infringed her copyright and moral rights in the photograph by publishing it without her licence or consent. Rather than filing a defence, the respondents applied for summary judgment or, alternatively, an order striking out the substance of the statement of claim. Justice Katzmann handed down her decision on that application on 22 September 2014.

In a nutshell, the respondents argued that the proceeding has no reasonable prospect of success and that Ms Francis' allegation is fanciful, frivolous and vexatious. However, Katzmann J considered the evidence filed by the respondents to be nothing more than 'hearsay and innuendo'. In contrast, Ms Francis' claim is 'no bare assertion' and was supported by sufficient evidence to persuade her Honour that 'there is a factual issue capable of being disputed and in dispute'. So the show must go on.

While the decision is primarily about practice and procedure, the following statement by Katzmann J sets the stage for what may, in the final judgment, be an important analysis of what it means to be the author of a photograph:
Of course, the real question is not who is depicted in the photograph but who took it. … For present purposes, at least, the respondents apparently accept that, if the photograph is in fact of Ms Francis, then she is the artist who owns the copyright. Whether or not that allegation is made out should be determined at trial.
Of all the works potentially protected by copyright, the photograph has historically fitted least comfortably within the traditional paradigm of copyright authorship. As much has been clear ever since Brett MR, a judge of the English Court of Appeal, acidly exclaimed in the 1883 case of Nottage v Jackson: 'I should like to know whether the person who drew this Act of Parliament [the Copyright Act 1862 (UK)] was clear in his mind as to who can be the author of a photograph. … I do not think he was.'

Photographs have always involved multiple physical, mechanical and chemical processes and contributors. In 1883 and the following decades, there were several authorial candidates in any given situation: the person who set up the camera (Brett MR identified, as examples, the 'man who gets the plate ready' and 'another man who, when the thing is ready, takes the cap off'), the person who operated the camera, the person who composed or arranged the subjects of the photograph, the person who developed the negative, and so on. Unlike other jurisdictions, including the United States and the United Kingdom, the Australian Parliament clarified the situation when enacting the Copyright Act 1968 (Cth) by deeming the 'author' of a photograph to be 'the person who took the photograph'.

The most popular interpretation of this statutory definition is that 'the person who took the photograph' could only refer to the person who presses the shutter button, as the 'taking' of a photograph occurs at that time. However, the definition has never been seriously tested by the courts, and it may prove deceptively ambiguous in certain circumstances. Consider, for example, the situation where one person takes all the steps ordinarily taken by the photographer – choosing the lens, adjusting the focus, controlling the exposure – but a second person simply presses the shutter. Presumably the statutory definition does not cover the second person who, to use the words of the High Court in IceTV v Nine Network and the Full Court in Telstra v Phone Directories, is akin to a 'mere scribe' performing a task 'mechanical in nature' without any 'creative spark', 'independent intellectual effort' or 'skill and judgment', and therefore fails to meet the threshold for originality. But what about the first person? In relation to literary works, the courts have recognised that where a writer dictates to an amanuensis, and the amanuensis dutifully drafts a verbatim transcript, the writer will be the true author of the resulting work even though the amanuensis reduced the words to material form (see, for example, Donoghue v Allied Newspapers Ltd [1937] 3 All ER 503). Conceivably, an Australian court could treat a photographer and his or her assistant, in this hypothetical scenario, in the same way. Equally, a plain English reading of the words 'the person who took the photograph' may bar that type of analysis.

Similar questions may arise if Ms Francis establishes that she is depicted in Brothers in Arms. Will she also be able to establish that she 'took the photograph' within the meaning of the Copyright Act 1968 (Cth) given that a photo booth is, after all, a machine? Was the photo booth primarily responsible for the reduction of the photograph into material form, with little or no creative input from Ms Francis (like 'a plane with its autopilot engaged … flying itself', to borrow an analogy from Perram J in Telstra v Phone Directories), such that copyright is unlikely to subsist? Or did Ms Francis operate the photo booth as a mere tool to shape or guide the material form of the photograph, much like 'a novelist uses a word processor' (to borrow another), in which case she will be better placed to demonstrate human authorship? Or are these questions, which have been considered by the courts in the context of literary works, irrelevant given the special place that photographs occupy in the statutory definition of 'author'?

Ms Francis' case may provide an opportunity for the Federal Court to snap some of these issues into sharper focus. (For a more detailed analysis, please see my forthcoming article 'A Tale of Two Selfies: Photography and the Problem of Copyright Authorship' in the Australian Intellectual Property Law Bulletin.)

2 comments:

  1. A very interesting piece. Thank you.

    But is it not likely that Ms Francis acquired the copyright to the photo as part of her purchase of the booth's photo taking services? In other words, that she bought the copyright rather than acquired it through the taking of the photo.

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  2. Thanks for your comment, Paul.

    If it's found that the photo booth took the photograph without sufficient creative contribution from Ms Francis, the result will be that there was no copyright to begin with, as copyright will only subsist in a literary, artistic, dramatic or musical work if it was created by a human author. In other words, there would be no copyright to acquire or buy.

    There's a section of the Copyright Act that provides, broadly, that where there's an agreement between one person and another person, under which the first person pays valuable consideration for the second person to take a photograph for a private or domestic purpose, the first person will be the copyright owner even though the second person is the author ("the person who took the photograph"). However, as the photo booth is not a "person" (and cannot be an author for the reason mentioned above), that provision will not apply.

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