Emma Delves-Broughton v H of H, Patents County Court
The Patents County Court (PCC) has ruled that the use by H of H of a photograph taken of a model without the photographer’s permission infringed copyright, and the changes made by H of H amounted to “derogatory” treatment of the work and therefore infringed the photographer’s moral rights under section 80 of the Copyright, Designs and Patents Act 1988.
H of H made changes to a photograph of Ms Delves-Broughton by removing the background and reversing and cropping the image. H of H then published the revised image on its website for six months. She sued H of H for copyright infringement, as the photograph had been published without her consent, and also claimed that her moral rights had been infringed as the photograph had been the subject of “derogatory” treatment, which is where there is a distortion or mutilation of the work or it is otherwise prejudice to the honour or reputation of the author.
The PCC ruled that H of H was liable for infringement of both copyright and moral rights. Although the image had not been “mutilated” nor damaged her honour or reputation, the changes meant that it had been distorted. The PCC awarded Ms Delves-Broughton at total of £725, including £50 for the derogatory treatment claim.
Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “This case is useful because there are relatively few cases on moral rights. Moral rights give certain rights for authors to be identified and not have their work treated badly. Those rights are separate from the rights under copyright not to have work copied without permission. The interesting here is that the court awarded damages even without mutilation or damage to reputation; but merely because of significant changes to the work that affected its original quality.
“The damages in this case were small. However, in another case, where the creator’s reputation is much greater and there is significant damage, the damages could easily be much higher. Each case must be determined on its own merits.”