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Derogatory Treatment of Photographs

Derogatory Treatment of Photographs

Published: 28.11.12 at 17:04

The creator of a work protected by copyright has certain 'moral rights' for example, the right to be identified as the author whenever the work is published commercially or exhibited in public.

The author also has the right not to have his work subjected to derogatory treatment. Copyright law provides that "treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author..." But the extent to which a work must be distorted or mutilated before the treatment is considered derogatory is not always clear. In a rare case involving the infringement of a photographer's moral rights, the Patents County Court held that alterations made to a photograph amounted to derogatory treatment of the work.

The facts

The case concerned the use of a photograph by House of Harlot Ltd (HoH), taken by Emma Delves-Broughton (EDB), a professional photographer. The original photograph was of a model lying in a forest wearing an outfit supplied to her by HoH. EDB provided the model with low-res jpegs of the photo shoot to use for her own private and non-commercial use. The model later supplied these to HoH which then went on to use one of the images on its website. HoH made a number of changes to the composition of the image prior to its publication including the removal of the forest background, reversal of the image and cropping.

EDB sued for copyright infringement claiming that HoH had published the photograph on its website without her permission. Additionally she claimed that the alterations amounted to derogatory treatment of her work and thus infringed her moral rights.

The decision

The judge found in favour of EDB in both instances. She had not granted HoH a licence to publish the image. The model, giving evidence for HoH, claimed that there had been a discussion during the photo shoot to the effect that HoH would be granted a licence to use the images. The judge rejected this assertion as the email correspondence between EDB and the model confirmed that EDB was to retain the copyright in the images and that no use of the photographs by any third party was ever discussed.

The judge found that considerable time and effort had gone into the composition of the original photograph. It was important to the photographer that the forest background appeared in the shot for artistic reasons. Accordingly, it was held that, while the alterations did not amount to mutilation of the photograph and were not prejudicial to the honour or reputation photographer, the changes amounted to a distortion of the original photograph and the treatment was therefore derogatory.

Damages

The judge awarded damages of £675 for copyright infringement based on HoH's unauthorised use of the photograph on its website for a period of 6 months. This figure was derived from National Union of Journalists guidelines on market rates for photographic licence fees.

The judge awarded a further £50 in damages for the derogatory treatment. The primary remedy for an infringement of moral rights is normally injunctive. However no injunction was sought in this instance and HoH had removed the photograph from its website. 

Conclusion

Arguably, even minor alterations to a photographic work can amount to a 'distortion' and thus infringe the moral rights of the author. However, the judge in this instance cited the artistic importance of the forest background that was removed. And so it is up for debate whether or not the mere cropping or reversal of an image would amount to derogatory treatment where the central artistic theme remains. Nevertheless it would be prudent to consider the extent to which you wish to edit the work and ensure that this is covered by the terms of the licence agreement.

Article by Joe Walsh

Photograph (some rights reserved) by Sappymoosetree

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