In 2004, the Drug Abuse Resistance Education charity used 19 of David Hoffman's photographs for two of its websites. According to court reports, the images had been sourced by a design company from a Department of Health website - Talk to FRANK - for which Hoffman had initially shot the images years earlier.
"They understood that the site was covered by crown copyright and understood that the text and images could be used," writes Judge Birss QC. "That was the defendant's understanding when the claimant first made his claim in
2007." But, Hoffman argues that when he sold his images to the Department of Health, he offered a wider license for use across different websites. "They declined and told me the images would only be used for this purpose." As a result, the Drug Abuse Resistance Education charity had no authorisation to use the images, the judge has confirmed.
"The fact that the defendant may have thought that it had permission to use the images is not a defence to infringement," says the judge. "The fact that they thought they had permission is not relevant. Although this may seem harsh, it is not. From the copyright owners point of view, the copyright is his property and his rights have been infringed if he did not give permission."
He adds: "Copyright law provides for other secondary acts of infringement which generally amount to dealing in infringing copies and those acts only infringe if the person knew or had reason to believe that the copies were infringing copies. However for the primary acts of infringement set out [in this case], the policy of the law is that if there was in fact no permission, an infringement has occurred even if the person genuinely thought they had permission."
Moreover, the charity cannot blame the website designer for the infringement, says the judge. "The fact that the defendant employed a firm to produce the website does not mean that the defendant avoids liability," he writes. "Since the websites in issue in this case were the defendant's own websites, and in the absence of any other evidence to the contrary, I find that it is the defendant who has committed the acts restricted by [Section 20, Article 3 of the Information Society Directive 2001/29/EC] in relation to the works on its websites. It seems to me on the paucity of evidence before me, the fact that the websites may have been designed by someone else does not matter. In my judgment the defendant is the person responsible for those sites and is liable."
As a result, Judge Birss has found against the charity and the Department of Health, and has asked for Hoffman to receive £10,000 in damages and £2,444.57 in interest.
But, Hoffman tells BJP that he doesn't expect to receive these damages, despite requesting more than £25,000 in his initial claim. "My claim originally was for around three times as much [as £10,000]," he tells BJP. "This was based on the flagrancy of the abuse, the lies and threats made by the defendant and the continued infringement for a long time after I had demanded the removal of the images. However when the time came for me to make my submission to the court the defendant was already in the process of becoming insolvent and so there was no point in putting in the additional work to support a higher claim as there was no expectation that it would be paid."
He adds: "For years, the Department of Health has been stalling this case, pretending that they were ready to settle when they were not. They've stalled long enough for DARE to go out of business. So, now, DARE has gone insolvent." Yet, Hoffman is happy about the outcome. "I wanted a technical judgement," he says.
According to Charles Swan of media law specialist firm Swan Turton, the outcome of this case will be beneficial to photographic community. "Photographers and image libraries are increasingly active in policing infringements of their work on the internet," says Swan. "Many infringements are deliberate, many are genuinely innocent (with website owners often blaming their designers). The Hoffman judgment will be welcomed by copyright owners who are confronted day in day out by the same old arguments. The judgment helpfully disposes of several of these in one document."
Last year, photographer John Goldsmith found that one of his images had been used by The Photographers' Gallery for the promotion of its new space in London. While the gallery first blamed the architects for using the image, it was forced to settle with the photographer for the infringement.
Hoffman adds that companies should be more careful about the sub-contractors they employ. "It is very common for websites to be commissioned from unqualified designers who go out of business long before problems become apparent. They generally have no insurance and the client is left holding the baby. A serious business commissioning a site from such a cowboy designer saves money but deserves all the trouble they get."
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