Photographer Robert Caplin has taken action following Perez Hilton’s alleged misuse of photographs that he took of ‘Glee’ Actor Darren Criss, which Mr Hilton published on his popular celebrity showbiz site, perezhilton.com.
The claim filed by Mr Caplin states that Mr Hilton published 14 images taken by Mr Caplin and embedded with Mr Caplin’s watermark, on his website without Mr Caplin’s permission. And to add further insult to injury, it is alleged Mr Hilton simply added his own watermark over the top of Mr Caplin’s watermark.
Mr Caplin had originally taken these photos following instructions from the NY Times who were running a piece on Mr Criss. The basic rationale behind copyright law, especially where photos and other artistic works are concerned, is that the person that took the photos – owns them (subject to privacy law etc), hence why the paparazzi can be so well paid for images they take.
In this particular case, Mr Caplin is claiming in excess of $2million dollars for breach of copyright. The reasoning behind this is the value of the images, and also the fact that Mr Hilton did not remove the images when Mr Caplin wrote to him and asked him to. Instead, the images only disappeared from the site after Mr Caplin had launched his lawsuit.
This case seems like a simple case of copyright infringement, and on the facts Mr Caplin’s chances of success seem high.
Let’s now imagine this case was taking place in England, and Mr Caplin had walked into our offices and said he wanted the images taken off the website ‘like yesterday’ we would have advised obtaining an injunction for take down of the copyrighted material under Section 97A of the Copyright, Designs and Patents Act 1988 (CDPA), against the service provider used by Mr Hilton to operate his website. Under the CPDA the High Court can grant an injunction against ISP’s who are made aware that a user is using their service to infringe copyright – which makes the granting of an interim injunction pretty straightforward when compared to say a libel injunction. Often, in our experience we find that ISP’s may even take action to remove the alleged copyright infringement before it gets to the stage of an injunction (Go Daddy often take notice when a letter is titled ‘We Are Coming For You Because the CPDA Says We Can’), simply because under the CPDA they can become directly liable for damages and costs etc resulting from copyright infringement, and so they take this action to safeguard their position. That is how strong the CPDA is.
In our hypothetical English version of this case, and as a result of the action taken above, the images immediately came off the website, thereby allowing Mr Caplin to breathe a sigh of relief, but will also allow Mr Caplin to move forward and make his substantive claim for misuse of copyright against Mr Hilton, with Go Daddy excusing themselves as they have removed the copyrighted material when asked to do so. Vis a vis everyone is happy…apart from of course Mr Hilton!
John Spyrou, Head of Internet, Media and Sports Law @ Pinder Reaux