Permission before you publish

Roger Pearson looks at a ruling which could stop newspapers publishing copyrighted pictures without getting prior consent

A recent High Court ruling has posed a major threat to the practice of newspapers which use photographs without the consent of the copyright holders in anticipation of gaining consent at a later stage.

The "use now and sort out the payment later" principal is said to be daily practice on newspaper picture desks. But in the recent ruling, in which The Sun is accused of lifting photographs used in The Times without the consent of the photographer, Mr Justice Lightman has left little doubt that it is a practice which breaches copyright law.

He branded the incident as "reprehensible". He has issued injunctions banning further use of the pictures and has ordered an enquiry into damages, believed to total around £50,000.

Solicitor advocate Nicholas Gardner, of Herbert Smith's intellectual property department, prepared the case against The Sun. He believes the judge's ruling is a warning to the media about the risks it takes if it uses photographs in this way.

The case centred on photographs taken by Francois-Marie Banier of Princess Caroline of Monaco to illustrate her fight against alopecia.

The judge said Times Newspapers claims it was granted a licence by Banier's agent to use the photograph for no payment but with an acknowledgement to Banier as the photographer. That claim is still in dispute and is the subject of a future contested hearing. The Sun attempted to obtain a similar licence but being unable to contact Banier's agent, it went ahead and published the photograph under the heading "The Courage of Caroline – Royal Bald for Photos".

The judge said he had considered written evidence from The Sun's picture editor in which he said it was common practice for one newspaper to contact another for a picture it has published.

He said that while a paper would always try to obtain its own licence, if that was not possible it would often publish without permission, and expect to pay an appropriate licence fee afterwards.

But the judge said: "This may be common newspaper practice and one which newspapers normally get away with. The risk of infringement proceedings may, from a business and circulation point of view, be worth taking. It may be economic to 'publish and be damned', but it is plainly unlawful and the sooner this is recognised the better."

News Group Newspapers, arguing against Banier's application for summary judgment, claimed it had arguable defences of fair dealing and estoppel.

The judge, however, did not consider either defence was arguable. Of fair dealing, he said it would be unreal to suggest the aim in publishing the photograph in The Sun was to illustrate a review or criticism of copyright work. And as far as estoppel was concerned, he did not consider the licensing arrangement reached between Banier's agent and The Times entitled The Sun to use the photograph in the way it had.

Gardner says: "This judgment indicates that newspapers are not above the law."

He says it is an important ruling for those such as his client, stressing that the value of a photograph can be greatly diminished if used in the media without consent. A photograph like the one in question would be expected to fetch about £55,000 on the international market, but once published its value drops considerably.