The claimant visited Trinidad and Tobago and obtained accreditation from the National Carnival Commission (“the NCC”) to enter and use the NCC’s events and facilities for the purpose of recording Carnival events. Accordingly, on January 28, 2016, at the Kings and Queens Competition held at Queens Park Savannah, the claimant took a photograph of a Carnival costume designed by Peter Minshall entitled “The Dying Swan, Ras Nijinsky in Drag as Pavlova” (“the image”). On the same day, the claimant uploaded the image to the Getty website, from which it could be made available to newspapers and other media outlets worldwide, with royalties being earned by the claimant. According to the claimant, the image was to be used for editorial purposes and commercial use of the image was not permitted.
On April 4, 2016, the claimant discovered that the image was used in an advertisement poster for Tobago Fashion Coda 4, an event organized, promoted, advertised and produced by the defendant. This poster was featured in a Facebook post and an enlarged version of the poster was featured by the defendant at the A.N.R Robinson International Airport in Tobago. Neither use of the image was permitted by the claimant. The claimant then entered into discussions with the defendant who agreed to pay for his use of the image but later refused to do so.
After a failed attempt at out-of-court settlement, the claimant instituted legal proceedings against the defendant in the High Court, on the basis that he was the sole original author of the image and that the defendant’s advertisement was not only an unauthorized reproduction of the image, but was also a distortion, mutilation and unauthorized modification of same.
In making its determination, the court considered the issues of whether the claimant held copyright in the image and if so, whether the defendant’s actions breached that copyright.
Applying the cases of Ladbroke v William Hill (1964) 1 All ER 465 and Antiquesportfolio.com plc v Rodney Fitch & Co Ltd [2000] IP & T 1375, the court held that the image was an original intellectual creation separate and apart from the costume itself, and that the claimant was the author of the image as the natural person who created it. The court further held that, as such, the claimant owned copyright in the photograph.
Moreover, following an examination of the Copyright Act, Chapter 82:80 and Designers Guild Ltd v Russell Williams (Textiles) Ltd (t/a Washington DC) [2000] 1 W.L.R. 2416, the court found that the similarities between the image and the advertisement poster publicly displayed by the defendant were sufficiently close, numerous or extensive to be more likely the result of copying than coincidence, and that the defendant had access to the image prior to the creation of the poster. The court also found that the defendant failed to discharge the burden of proving that the image was not copied, and that the defendant infringed the claimant’s copyright in the image.
In addressing the defendant’s arguments, the court distinguished between the subsistence and infringement of copyright, and the accreditation issued by the NCC.
The defendant was therefore ordered to pay damages to the claimant for infringement of his copyright in the image (with damages to be assessed separately), as well as costs.
Cases referred to:
Ladbroke v William Hill (1964) 1 All ER 465
Antiquesportfolio.com plc v Rodney Fitch & Co Ltd [2000] IP & T 1375
Designers Guild Ltd v Russell Williams (Textiles) Ltd (t/a Washington DC) [2000] 1 W.L.R. 2416.