-ARTICLE: Newsgroup Newspapers Ltd v Douglass Consultancy Services Ltd (2005) –
Tom Frederikse, solicitor
A website that relied on an informal disclaimer, appealing to copyright holders to forgive its obvious copyright infringement, has been forced to withdraw the infringing pictures. On 15 October 2004, News Group (owners of The Sun and News of the World) obtained an interim injunction to prohibit publication of its pictures by the offending site. The website referred to as “robscelebs” (controlled by Douglass) provides access to photographs of celebrities – many taken from other publications and posted on the site. The site apparently offers over 100,000 photos and, as the court noted, the most popular images are those in which “the subject of the picture is exposing the most flesh”. In January 2004, News Group complained that photographs in which it owned the copyright or which were under an exclusive licence appeared on the website. The infringements were easily proved as many of the images bore the banner of The Sun or the logo of “page3.com”. Douglass had earlier admitted that News Group did own the rights to certain photos posted within the site and had offered an undertaking to remove those images. The site, however, continued to post infringing images and posted a notice stating “This is a free site and I know that copyright will exist for many of the images here … I try to repay the use of the media by linking to the [rightsholder’s] sites … I also support any of these in promotions from time to time … I hope that is enough compensation …”. News Group considered the justification in the posted notice less than satisfactory and sought an injunction forcing Douglass to abide by its own undertaking and to refrain from posting any more photographs owned or controlled by News Group.The court held that News Group was suffering ongoing injury because the unauthorised publication of images reduced the value of those images and, in the case of photos under exclusive licence, the value of the licence was being negated. Because the damage could not be readily assessed in monetary terms, and because the number of photos which Douglass was being forced to take down formed a small proportion of the site as a whole, the court granted the injunction requiring Douglass to take down all identified photos and refrain from posting or otherwise copying any further images.
Though the issue was not argued, the court did suggest that there was doubt regarding the status of photos appearing in the site’s “chat room”. The court stated that, despite the chat room being constantly policed by a third party “moderator”, it was unclear as to whether infringing photographs posted by users of the chat room would be sufficiently within the control of the moderator to sustain a claim of infringement (primary or secondary) against the site or against the third party moderator. This point may be decided if this interim hearing ever comes to a full trial.
by Tom Frederikse, Solicitor
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