Australian politician may take further legal action for copyright infringement of online photo
09 June 2022
South Australian independent federal MP Rebekha Sharkie threatened to take further legal action against Christian advocacy organization Australian Christian Lobby (ACL) for distributing two flyers using her photo without her consent.
Sharkie said the Canberra-based organization infringed her copyright by using her photo on the flyers without permission.
Said flyers emphasized her vote against the Religious Discrimination Bill and to repeal Section 38 of the Sex Discrimination Act, which protects the value of Christian schools in Australia in February 2022.
She said she will take further legal action if ACL does not apologize.
ACL spokeswoman Wendy Francis said the organization had neither received a correspondence from Sharkie regarding this nor has it been given evidence that Sharkie is the copyright owner of the photo.
Furthermore, she said that the photo appears on different sites online, thus making it publicly available.
Copyright ownership over a photo vests automatically on the person who took the photo – whether he is a professional photographer or not. In most jurisdictions, the copyright arises automatically as soon as the photo is taken. Copyright may also be assigned. Or, the owner of the copyright may be an employer or the individual featured in the photo in cases when the work was commissioned for private or domestic purposes.
“The kind of evidence that would establish ownership would name the photographer and indicate whether any person has acquired the copyright from the photographer, for example, by a deed of assignment,” said Kellech Smith, partner at Ashurst in Melbourne.
Does the fact that Sharkie’s photo appears online eliminate the commission of copyright infringement?
“Not necessarily. The fact that a work is available online does not mean that it is available to use,” said Smith. “Most images made available online will be protected by copyright and the issue is whether the owner has given permission to use the work, and if so, for what kinds of activities. Some items are made available online with licenses or terms that permit free use, such as under creative commons licensing, but many are not. Anyone wanting to use a work that appears online, should confirm whether permissions have been granted for the kind of use that is contemplated, or seek legal advice from an IP expert.”
If a person fails to do this and proceeds to use the material, the consequences can be heavy. These include damages, additional damages as well as liability to pay at least a portion of the copyright owner’s legal costs. In total, these may run into the tens of thousands, even more.
In 2021, the Federal Court of Australia ordered Clive Palmer, founder of the United Australia Party, to pay AU$1.5 million (US$1,079,991) in damages plus legal costs for infringing the copyright of the Twisted Sister song “We’re Not Gonna Take It” in a series of campaign videos. Universal Music Publishing Pty Ltd and Songs of Universal (Universal) own the copyright to the song.
“Ultimately, anyone wanting to use a photograph located online, or other work such as music, needs to be mindful of these issues and seek appropriate advice, and remember that items purchased legally, such as songs, do not confer rights to use the underlying copyright,” said Smith.
“Additionally, copyright is not the only legal barrier to using a photograph that has been located online. For example, in Australia using a photograph for commercial purposes without consent may also breach the Australian Consumer Law,” she added.
It is not known if ACL has, indeed, issued an apology to Sharkie.
Espie Angelica A. de Leon
