FNH Investments Pty Ltd v Sullivan

[2003] FCAFC 246

FEDERAL COURT OF AUSTRALIA

FNH Investments Pty Ltd v Sullivan [2003] FCAFC 246

COPYRIGHT – additional damages – breach of contract and copyright infringement – whether damages can be awarded under subs 115(4) of the Copyright Act 1968 (Cth) if the copyright owner and infringing parties are contracting parties – where no license agreement in force – where breach of copyright flagrant.

Copyright Act 1968 (Cth), subs 115(4)

Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 referred to

FNH INVESTMENTS PTY LTD v NORTH JOHN SULLIVAN & XYZ PRODUCTIONS PTY LTD

N 615 of 2003

WHITLAM, MOORE & KIEFEL JJ
SYDNEY
7 NOVEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 615 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

FNH INVESTMENTS PTY LTD
APPELLANT

AND:

NORTH JOHN SULLIVAN
FIRST RESPONDENT

XYZ PRODUCTIONS PTY LTD
SECOND RESPONDENT

JUDGES:

WHITLAM, MOORE & KIEFEL JJ

DATE OF ORDER:

7 NOVEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondents’ costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 615 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

FNH INVESTMENTS PTY LTD
APPELLANT

AND:

NORTH JOHN SULLIVAN
FIRST RESPONDENT

XYZ PRODUCTIONS PTY LTD
SECOND RESPONDENT

JUDGES:	WHITLAM, MOORE & KIEFEL JJ
DATE:	7 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. This is an appeal from a judgment of a single judge of this Court of 10 April 2003 in which his Honour awarded the first respondent, Mr Sullivan, damages and additional damages under the Copyright Act 1968 (Cth) (‘the Act’) and a judgment of 30 April 2003 ordering the appellant, FNH Investments Pty Ltd (‘FNH’), to pay Mr Sullivan’s costs (and the costs of a service company he used (‘the service company’) which was the second applicant below) on an indemnity basis. The proceedings concerned photographs Mr Sullivan had taken and the use of them by FNH in breach of Mr Sullivan’s rights under the Act.

   Background

2. The following emerges from the findings made by the primary judge.  FNH operated and owned an interest in Palm Bay Hideaway Resort (‘the Resort’).  Mr Sullivan was a photographer who (personally or through his service company) entered a contract with FNH to take photographs of the Resort.  The directors of FNH were Mr and Mrs Davidson.  The general manager of the Resort was Mr Hill.  Mr Davidson met Mr Sullivan on a ferry from Daydream Island where Mr Sullivan had finished a shoot for the resort there.  Mr Davidson suggested that Mr Sullivan contact Mr Hill regarding the possibility of doing some photography for the Resort.

3. In November 2001 the contract was concluded for Mr Sullivan to take photographs of the Resort.  The contract was partly oral and partly written.  The primary judge…