Copyright and Photographers
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1 September 2012
Celebrity Pictures Ltd
& Tyson Sadlo v B Hannah Ltd  EWPCC 32
Tyson Sadlo, a professional photographer, was asked by a company called
Oxygen 10 Limited to conduct a photo-shoot of business woman Karren
Brady. The photographs were intended for publication in Today's
Business Woman, an Oxygen 10 publication. Sadlo had granted syndication
rights to Celebrity Pictures Limited. Celebrity Pictures and Sadlo
allege infringement of copyright by B Hannah Limited, a company in the
same group as Oxygen 10, after they published the photographs in the
BUPA Health Magazine and on the Celebrity Angels website.
At the time of the shoot, Oxygen 10 operated as a separate company from
B Hannah at a separate address. After the shoot, the lease of the
premises of Oxygen 10 ended. The operations of both Oxygen 10 and B
Hannah were conducted from the same office in Camden, London. Oxygen 10
then ceased trading and the company was dissolved.
B Hannah contended that it owned, or at least, jointly owned the
copyright. B Hannah expressed this to be the case as it had taken over
Oxygen 10's business after its dissolution. The claim to ownership
arose out of a written document alleged to have been sent to Sadlo. The
contract stipulated that by accepting the assignment the photographer
agreed to worldwide exclusivity in favour of Oxygen 10. It included a
further term that "the image rights belong solely to Oxygen 10". If
this document was received by Mr Sadlo, its terms would be sufficient
to defeat the claim to infringement. The receipt of the contract by
Sadlo of the contract became the principal issue in the action. B
Hannah also held that there is an implied term to the same effect as
the express term.
Oxygen 10 Limited asserted to Sadlo which photos they were after.
However, this turned to be the full extent of their input. Under the
test in Creation Records Limited v News Group Newspapers
Limited  EMLR whilst they may have been involved in
setting up the studio they had no role in choosing "the camera
angles and settings and the control of the scene at the instant at
which the photograph is taken."
The result is Oxygen 10 could not be joint owners of the work. It also
follows B Hannah were not joint owners of the photographs.
B Hannah attempted to rely on a contract that Oxygen 10
purported to have sent to Sadlo. Sadlo claimed not to have received a
contract; if he had done then he would not have proceeded with the
shoot. Oxygen 10 could not prove the contract had been sent. The normal
protocol was to email this, but in this case they had failed to do so
and claim the contract was sent by post, however, there was no evidence
this happened. Judge Floyd was unenthusiastic on Oxygen 10′s stance
because there was no explanation for why the letter had not been
emailed like usual and after repeated attempts requesting a copy of the
contract by Sadlo, B Hannah failed to supply one.
Floyd concluded the evidence failed to show the contract was
sent and there was no express term assigning the copyright to B Hannah.
B Hannah also argued, without the express term in the contract, there
was an implied term of the employment of Sadlo that he would agree to
assign the copyright to Oxygen 10. However, Floyd found no reason to
imply a term which would see copyright transferred to the defendant. It
was not established that the parties had any wider use in mind at the
time other than the photos would be published in Today's Business Woman.
Oxygen 10 had ceased trading prior to the allegedly infringing use, but
Floyd ruled that the B Hannah were liable for these infringements.
Sadlo had been requested to redirect his invoice to B Hannah as they
had "changed all the payment(s) over to one account as Boston
Hannah" suggesting B Hannah would be responsible for Oxygen's
future dealings. Furthermore, the photographs being authorised by B
Hannah Ltd to be used in the BUPA magazine, as Oxygen 10 had ceased
trading left no doubt B Hannah were primary infringers.
This article has been written by Jeremy Liu whilst on work experience.
James is studying law at Southampton Solent University.
Michael Coyle is a Solicitor Advocate and can be contacted at
firstname.lastname@example.org. Lawdit Solicitors is a
commercial law firm based in
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Article Published/Sorted/Amended on Scopulus 2012-09-28 09:09:29 in Legal Articles