Honey, G. v Australian Airlines Ltd
[1990] FCA 283
•27 Jun 1990
JUDGMENT NO. .....-....... ., ,, 2 8 3 ~ 8e-.
CATCHWORDS
TP..WE PRACTICES - Use of photograph of champion amateur athlete in conduct of business activities - Whether the use of the photograph constituted the making of false representations to the public or a section of the public
-that the athlete approved the use of the photograph and endorsed, or was otherwise commercially associated with, the business activities - Question to be answered by objective 3ssessment of the overall impression on viewers of the use of the photograph - Weight to be given to conclusions of primary judge.
Trade Practices Act 1974 (Cth), ss.52, 53
GARY HONEY v. AUSTRALIAN AIRLINES LIMITED and ANOR
No. V C 191 of 1989 - Woodward, Nesves and Ryan JJ.
Melbourne7 7 June 1990
-IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY
) No. V G 191 of 1989 ) GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE OF
THE FEDERAL COURT OF AUSTRALIA
BlcmEEN: GARY HONEY .
- Appellant
.UID : AUSTRALIAN AIRLINES LIMITED First Respondent
HOUSE OF TABOR INCORPORATED
Second Respondent
MINUTE OF ORDER
THE COURT: Woodward, Neaves and Ryan JJ
- DATE OF ORDER:. 27 June 1990
WHERE MADE: Melbourne -
| - | THE COURT 0RDEF.S THAT: |
1. The appeal be dismissed.
2. The appellant pay the respondents' costs of the
appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY
) No. V G 191 of 1989 )
GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE OF
B E FEDERAL COURT OF AUSTRALIA-
BETWEEN : GARY HONEY Appellant
-AND : AUSTRALIAN AIRLINES LIMITED First Respondent
HOUSE OF TABOR INCORPORATED -
Second Respondent
CORAM: Woodward, Neaves and Ryan JJ.
m: 27 June 1990 -
REASONS FOR JUDGMENT
THE COURT:
The appellant, Gary Honey, has appealed from a judgment of the Court constituted by a single Judge
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(Northrop J.) dismissing an application brought by him agalnst
Australian Airlines Limited - formerly the Australian National Airllnes Commission - ("the first respondent") and House of Tabor Incorporated ("the second respondent"). The - appellant's claim against the respondents, which was based on 55.52 and 53 of the Trade Practices Act 1974 (Cth) and the tort of passing off, was for injunctive and declaratory relief and damages arislng from the use of a photograph of him in their respective buslness activities.
At the tlme of the acts complained of the appellant
was an outstanding Australian athlete. He was a champlon longjumper and had participated in other competitive events. He
had considerable success at the 1982 and 1986 Commonwealth Games and the 1934 Olympic Games. Of particular significance for-present purposes is that the appellant won a gold medal at
| - | the Commonwealth Games held at Edinburgh, Scotland in 1986. The learned prlmary judge found that the appellant was an amateur athlete wlthin the meaning of the rules of the International Amateur Athletic Federation - whlch restricted to |
- amateurs the class of persons permitted to compete in athletic events conducted at international athletic meetings such as the Olympic Games. Hls Honour inferred that competition in the Commonwealth Games was also limited to amateur athletes in a - sense slmilar to athletes competing in the Olympic Games. He referred to these iindings as belng consistent with the perception of the publlc that competitors in the Olymplc Games and the Commonwealth Games were amateurs even though it was
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accepted that they might recelve financial beneflts as a result -
of thelr activities as amateur athletes. In his opinion, the - - appellant would be perceived by the public as a champion
amateur athlete.There was evidence, which the primary judge accepted, that, following hls success in winning the silver medal at the Los Angeles Olympic Games in 1984, the appellant entered into what was described as a "Track & Field Consultant Contract" with Nike Inc., a company incorporated in the United States of Amerlca having business Interests throughout the world in
providing sportswear. The agreement provlded for the payment
of certaln moneys to the appellant. His Honour also found that the appellant had recelved moneys under sponsorship arrangements wlth other companies.
The appellant's claim against the flrst respondent was based upon a poster which was produced in 1987 and distributed by that organization. It was approximately 74 cm in length and
some 49 cm in width and featured a photograph taken while the appellant was alr-borne in the long lump event at the 1986 Commonwealth Games. The primary judge described the photograph - as havlng been superimposed on a colourful background highlighting different colours. His Honour continued:
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"It depicts the Cappellant3 clearly and hlghllghts the energy and momentum of a champlon striving his utmost to achleve success. His arms are stretched hlgh above his head, one leg 1s stretching forward and the other i-s bent back. Concentration, determination and endeavour are shown by the facial features. The muscles are taut illustrating the extreme effort being utilised. It was described, truly,. as a
dynamlc presentation and it is easy to understand how it could Inspire others to
participate in sporting activities. The - photograph depicts the Cappellant3 wearlng materlal promoting 'Adidas' and 'Guinness' presumably sponsors of the Games."
On the bottom rlght hand side of the poster (the left hand side to the viewer) in what his Honour described as "small prlnt when compared wlth the size of the poster and the size of the photograph" were the words:
"ATHLETICS
Commonwealth Games
Edlnburgh, Scotland
Long Jump
Gary Honey, Gold Medal winner
(Photography by: Tony Feder, Melbourne)AUSTRALIAN AIRLINES"
To the right and slightly below the words "Australian Airlines"
-appeared the first respondent's "logo". !he prlnted words and
"logo" were white and were placed within an area 7 1/2 cm deep and 11 1/2 cm wide. The evidence established that for many years the flrst
respondent or its predecessor, the Australian National Airlines
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Commission, had produced posters based on photographs depicting persdns competing in sportlng activities. Some depicted one person only, some deplcted members of a team or crew, some contained a number of different photographs. Sometimes the persons shown were not champions. The normal practice was to place towards the bottom of the poster the name of the first respondent and its "logo" together with words describing the sport.
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During the year 1987 eighteen posters were produced. Of these, three were based on the 1986 Commonwealth Games at Edlnburgh. The poster in question was one of those three; the others depicted team events, namely the women's relay team and the team pursuit cycling. Approximately 1,000 copies of each
- poster were produced. They were distributed through the offices of the flrst respondent throughout Australia. They were distributed free to schools, sportlng associations, sporting bodies and similar types of groups. Persons or bodies who were aware of the existence of the posters could obtain copies on request. The evidence- was that they were not distributed to travel agents, such agents being supplled with material depicting destinations, package holidays, business services and corporate promotions. Although, as is mentioned elsewhere in these reasons, the executive director of the second respondent said that- he first saw the poster in question at the premises of a travel agent, the evidence did not satisfactorily explain how the poster came to be there.
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The primary judge accepted that the main purpose of providing and distrib~~ing the posters was to recognise sportapeople in Australia, to show the achievements of Australian sportspeople, to record sporting events which took - place, and to encourage wider participation in sport generally. - The second respondent is, and at- the relevant time was, a non-profit association incorporated pursuant to s.22 of
the Associations Incorporat~on Act 1985 (S.A:). It operated a
- non-denominational charismatic teaching centre located in South Australia. Its aim was to be a people's teaching centre to - which men and women of all churches could come for leadership -- training and practical tuition in how to serve God more effectively. It conducted in South Australia the Tabor College to provide a teaching program marked for its biblical and practical qualities and its emphasis on excellence. As part of its activities, it published a magazine called "New Day International" which had a circulation of about 4,900 copies belng, in the maln, forwarded to-subscribers though some were on sale to the public at a number of "Christian bookshops". It also, from tlme to tlme, published books. In 1987 the second respondent was plannlng to publish
a book entitled "How to Llve the Klnd of Life You've Always
| - | Wanted to Live" wrltten by Barry chant, the President of the |
| second respondent. The book was based on the author's Creatlve | |
| Living course presented to students attending the Tabor | |
| College. Durlng the latter part of 1987 the second respondent | |
| was seeking an appropriate feature to be Illustrated on the - | |
| cover of the book. A decislon was made that, havlng regard to | |
| the theme of the book, the front cover should show a photograph | |
| of a sportsperson in actlon, Some enquirles to find a suitable | |
| photograph were made by Dennls Stanley John Slape, the second | |
| respondent's executive director. In about November 1987, Mr | |
| Slape noticed in a travel agent's office at Adelaide the |
.
-Australian Airllnes poster depicting the appellant. He thought ~t was an ideal photograph for the magazine and the book. He
said that he looked a llttle closer at the poster to try to - establish its source and notlced that it was Australian
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Airlines. Mr Slape subsequently made enquiries of that organlzatlon and was lnformed that the photograph could be used provided Australian Alrlines was acknowledged as the source of the material. Flve thousand copies of the book were printed. Copies were sent to churches and to "Christian bookshops" for
| - | sale to the public. |
| The basis of the claim against the second respondent was the publication by it of the book and of the March 1988 issue of the magazine. Of the book, the primary judge said: |
"The book 'How to Live' was puDlished in November 1987. It is a paperback but with a glossy outer cover. The book is 11 cm wide and 17.8 cm long. The cover has on it, in colour, a copy of the photo of Gary-Honey taken from the poster and with the bright background. The photo reproduction is 8.5 cm wide and 10.8 cm long. The word 'Guinness' has been removed from the number being worn by Gary Honey but the 'Adidas' logo is apparent. Superimposed on part of the lower left of the photo and on the cover is the reproduction of a gold medal won at the Los Angeles Olympics, 1984. This was taken from the gold medal won by Glenys Nunn who supplied the gold medal to the House of Tabor for reproduction. She did not charge a fee for that service. The front cover contains the name of the book and the name of the author. It contains also the words 'Foreword by Robert H. Schuller'. On the back cover there appear the words 'Cover photo courtesy of Australian Birl-ines'. Nowhere on the cover or in the book is the subject of the photo said to be Gary Honey. His name does not appear at all."
Of the March 1388 issue of the magazine, his Honour
said:
published in March 1988. It is a glossy "The 'New Day' magazlne for March 1988 was magazlne 20 cm wide and 26.5 cm long. On its front cover is a colour reproduction of the photo of Gary Honey as appearing on the poster but with the word 'Guinness' removed. The photo is 18.3 cm wide and 26.5 cmlong. The words 'New Day' in bold colour appear on the top of the cover. Under these words, in much smaller print, is the word 'International' printed between parallel lines. Then there appear the words 'No. 75 March, 1988 Price $2'. Apart from the words 'New Day' the other words are difficult to read. On the lower right side of the photo are the clearly read words 'Inside: How to Live the Kind of Life You've Always Wanted to Live'. Under these words there is
superimposed a photograph of Barry Chant, the author of the book. On the left side of the photo are the clearly read words: 'This is War', 'How to Use Spiritual Gifts' and 'When God Prays'. These are the titles of three of the features appearing in the magazine. On the lower right corner of the photo are the clearly read words 'For Charismatic Revival and Unity. Registered by Australia Post Publication No.
SAR2437' . On the top of the third column on page 3 of the
-magazine there is a black-and white reproduction
of the top of the body and the head of Gary
Honey taken from the coloured photo above the words 'HOW TO LIVE THE KIND OF LIFE ... Living creatively is possible for all those who know the power of the Creator at work in their lives. Earry Chant has written an inspiring book. Page 31'. On page 31 of the magazine is a black and white reproduction or the cover of the book and a review of the book by Geoff Strelan, together with a note that the price of the book is $11.95."
The name Gary Honey did-not appear in the magazine.
In the amended statement of claim filed on behalf of the appellant, the allegation was made that, by reason of the matters to which reference has already been made, each of the respondents, belng a corporation within the meaning of that expression in the Trade Practices Act, in trade or commerce engaged in conduct that was misleading or deceptive or was likely to mislead or deceive contrary to s.52 of that Act. That section provides - "(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
( 2 ) Nothing in the succeeding provisions of
this Division shall be taken as limiting by
implication the generality of sub-section (l)."
It was further alleged that each of the respondents was in breach of paras ( c ) and (d) of 5.53 of that Act, those
provisions being in the following terms:
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"A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means-of the- supply or use of
goods or services -
(c)
represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;
(d)
represent that the corporation has a sponsorship, approval or affiliation it does not have;
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The further allegation .was made that each of the respondents
had "passed off themselves and their businesses, goods and
.
services, sold, offered for safe, distrlbuted, supplied,
| - | promoted or advertised by them as the case may be as and for and as connected -with the Cappellant3, his buslness and |
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.servicesu. It was not in dlspute that the flrst respondent was a
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corporation within the meaning of that expression in the Trade Practices Act and engaged in trade and commerce. The second respondent conceded, for the purposes of the proceeding, that it was such a corporation and that it was relevantly engaged in
trade or commerce within the meaning of that expression in ss.52 and 53 of that Act. It was common ground that neither of the respondents had sought the permission of the appellant to use the photograph of hlm and that he had not given his consent to its use by them.
In dismissing the claim against the first respondent
based on ss.52 and 53 of the Trade Practices Act, his Honour
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sal-d:
"On the facts of the present case, I am not satisfied that the applicant has made out a case against Australian Alrlines insofar as it was based upon the Act. It is true that the name 'Australian Alrlines' and its logo appear on the poster and to that extent the poster promotes or advertises Australian Airllnes. But regard must be had to the overall effect of the poster and the class of persons to whom the poster was directed. At the same time it must be remembered that any member of the public might see the poster. A full description of the
poster has been glven. Its overall effect has
been stated. It was directed to school - children, members of sporting clubs and assoclatlons and its purpose was to prcmote sport. In my opinion, lt has that effect and the. members of the public seelng the poster would be encouraged by the achievements of the applicant and encouraged to participate in sport and to achleve according to the best of their ability.
The group and -members of groups receiving the
- poster would have been aware that the poster was but one of many published and distributed by Australian Airllnes depicting sporting activities in which, mainly, the persons whose photographs appeared were non-celebrities. On a true analysis, the poster should be described as promoting excellence in sport and the desirability of participating in sport. The poster itself does not constitute, in my opinlon, a representation that Australian Airllnes was connected with the applicant, that it was permitted or licensed by the applicant in respect of the applicant's name and photograph, that its services were sponsored or approved by the applicant or that it was sponsored by, or approved by or affiliated with the applicant. The poster does not even give rise to a state of wonder as to whether there is any connection betveen Australian Airllnes and the applicant. It 1s seen as an art work supporting participation and excellence in sport and nothlnq more. The name 'Australian Airllnes' is zeen as nothing -rnf~re than the source of the poster. In this respect, that name is seen as bcing no different from the namlng of the-person who took the photograph. The essential aspect 1s the photo ltself and the identification of the name of the athlete and the event in which he was competing." The references-to the appllcant are, of course, references to the present appellant.
Hls Honour also dlsmlssed the claim agalnst the - second
respondent based upon the Trade Practices Act. His reasons for - doing so appear from the fsllowlng passage in the judgment:
"Different consldcrations apply wlth respect to the House of Tabor. The name of the applicant does not appear in cithcr the magazlne or the book and so any connection betveen the House of Tabor and the appllcant depends, of necessity, on thc fact that s i~qr~ificant segment of the public xould recognl5e and identlfy the ~ppllcant by hls photograph. The applicant is a :?ell known athlete in each of the States and the Territories of Australia by reason of hls participZtlon and success in the Commonwealth
and Olympic Games, but I have doubts as to - - whether, in the absence of hls name appearing on the cover of thc nagazlne or- the book, a
significant segment of the public would identify
the person depicted in the photo as the applicant. The segment of the public who would be likely to so identlfy the applicant would be those connected with athletics or interested in watchlng sporting activities. The Games are held every two years, alternating between the Commonwealth and Olympic games. Between these games, the high profile given to competitors declines and the memorles of the public fade.
The magazine and the book are unique in some respects. Neither is presented to the public generally. Most of the copies of the magazine are forwarded to subscrlbers who subscribe for the Furpose, ~resumably, of reading the contents: Even if the subscribers recognised the photo on the cover as being the appllcant, it is most unlikcli. they would think there was any connection -between the applicant and the
_House of Tabor. A reference to the articles contalned in the magazine shows that much is made of the experiences of named persons. The applicant is not named on the cover of the magazine or in the magazlne and there is no basls for the reader to believe that the ~ppllcant has somc-conncctlon with the House of Tabor. Thc subscrlbers would be unllkely even to wonder about any poszlble connection.
The magazine 1s forwarded ilso to 'Christian bookshops' for sale to members of the public who frcquent bookshop- of that kind. No detalled evidence-was 31\,cn concerning the nature of Christian bo~kshops but it is to be expected that thcy r?ould attract a llmited segment of the ~ublic, whlch, In general, vould be interested In rcadlng the contents of the magazine. The ~ppllcant 1s not named on the cover of the magazine and in my opinlon the persons vlslting this type of bookshop would not believe that the sppllcantf has some connection or relationship with the House of Tabor.
I come to a slmllar conclusion conccrning the
book. The book =as forwarded to a number of Christian churchcs for sale as well as to
. Christian-bookshopz. If any member of the public coming withln the class of persons ~ttending at that type of place recognized the photo on the cover as- being that of the appllcant, in all probability that person would know that he had not won a gold medal at the Los Angeles Games. In this regard the existence of
fingelcs Olympiad superimposed on part of the the reproduction of the gold medal from the Los photograph of the applicant may have caused wonder about what this was all about. Thi S
- wonder, however, does not -lead to a belief that there was a connection or relationship between
the applicant and the House of Tabor.In my opinion, in all the circumstances of this case neither the magazlne nor the book constitutes a representation that the House of Tabor was connected with the applicant, that it was permitted or licensed by the applicant in respect of the applicant's photograph, that its products or services were sponsored or approved by the applicant or that it was sponsored by, or approved by or affiliated with the applicant."
Again, the references to the applicant are references to the present appellant
His Honour also dismissed the claims made against the respondents on the basis of the tort of passing off. However, - as no separate question was raised on the appeal in relation to those claims, we need not refer further to that aspect of his Honour's judgment.
.
The essence of the appellant's case 1s.- that the primary judge err-ed in falling to find that the publication of the poster on the one hand, and of the book and magazine on the other, involved the making by the first and second respondents respectively to a significant segment of the public of representations, that were false, to the effect that the appellant approved the use of his photograph-and endorsed, or was otherwise commercially associated with, the activities of the first or second respondent. Counsel referred to a variety - of background circumstances which, it was submitted,- were
required the conclusion that the representations alleged had clearly established by the evldence and which, taken together, been made. It was submitted that a significant number of those
who might have been expected to view the poster, the book or the magazine would have understood it to be commonplace for well-known personalities, including athletes, to endorse commercial products and services. Such viewers would have appreciated,-so it was submitted, that the photograph was of an outstanding athlete who was well-known by reason of the extensive publicity he had received in the media in Australia as a result of his success at the Olympic and Commonwealth Games and would have recognized that the photograph was being used in conjunction with references, in the poster, to the commercial identity of the first respondent and, in the book .
and magazine, to the commercial identity of the second respondent. Further, it was sald that there would have been created in the m-inds of those viewers the impression that the - respondents expected to benefit from the use of the photograph and to do so by the perceived association between the person depleted in the photograph and the commercial organization.
The use of the photograph on the poster, the book and the magazine was said to have had the appearance, in each case, of-a commercial promotion and so would have led to what was described as the natural 'nference that the person whose photograph was used had granted permission for its use and -
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| - | endorsed the services or products with which its use was |
| associated. That inference was said to have been the stronger | |
| because the-features of the photograph made it particularly apt |
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for the promotion of the respondents' services or products. It was further submitted that what was referred to as the natural inference which a viewer would have drawn from viewing the
poster, the book and the magazlne would not have been displaced by the context in which the photograph was used, the extent of distribution of the material, or the status of the appellant as an amateur, rather than a professional, athlete.
Couns?l for the appellant also submitted- that the primary judge had-fallen into error in a number of particular respects which were summarized as follows -
(a)
in concentrating attention on the purpose of the use of the photograph and the class .of persons to whom it was directed instead of assessing
- objectively what the photograph would have conveyed to persons llkely to view 1t;
(b) in underestimating the effect of the association of the photograph with the readily observable identification of each of the respondents;
. (c)- in placing welght on the assumption that most people receiving the poster would have been aware that the poster was but one of many published and distributed by the first respondent depicting sporting activities in whlch mainly the persons whose photographs appeared were non-celebrities;
(d)
In the case of the second respondent, in leaving out of account the likelihood that the appellant would have been recognized mercly by his photograph or that the display of the photograph would brlng to mind to a significant number of
- vlewers a wldely known and outstanding
athlete, even if not identifiable hy name, and in assumlng that, because - the appellant was not -named, viewers would have thought that no connection existed between hlm and the second respondent; and
(e) In relylng on a characterization of the appellant as "not a professional athlete in the general understanding of that phrase".
All that-could be said in favour of the appellant's case was put to us by his counsel but we remain unconvinced that any sufflc-ient ground has been shown to warrant this Court interfering wlth the conclusions reached by the primary judge. Having regard to the nature of the issue, this Court is bound to give considerable weight to those conclusions. In particular, we are unable to accept that the careful and detailed reasons which his Honour gave for reaching his conclusions dlsclose error, as asserted by the appellant, in the manner in whlch his Honour approached the task of assessing the effect upon the viewer of the use of the photograph in the poster, the book and the magazine.
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It is a reflection of the increasing commercialism or materialism of ou; soclcty, condltloned by ever more pervasive
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advertising, that the use of the name or Image of a person, - whether a well-known sportsperson or a person otherwise -
prominent in the community, wlll often be perceived by those - who see or hear the material as representing that the celebrity
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has consented to the use being made of his name or image and to
the use of his name or- image in a way which will convey
endorsement of, or at least support for, the commercial
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enterprise concerned or the products or services which it - markets. And, if it be material, the commercial enterprise
concerned and the publisher will usually intend to convey the
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impression that the celebrity has consented to the use of his
or her name or image in that way. The representation may be express and direct or it may be conveyed in a more or less subtle or indirect way. Whether such a representation is conveyed to those who see or hear the material will depend, of course, on a variety of factors, including the content and format of the material and the context in which the name or image of the person appears.
In thc final analysis. the questlon whether the poster
distributcd by the first respondent and the book and magazine
published by the second respondent may falrly be said to have
conveyed to a ..significant :ection of the viewers of thein the representations alleged by the appelllnt must be answered by an oblective assessment of the overall impresslon which they would make upon those viewers. One can, however, point to particular factors, none of which is conclusive in itself, which bear upon the answer which should be given to that questlon.
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The circumstances in whlch the photograph of the
appellant was taken by Mr Feder were not explained by the
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evidence, It is clear, however, that it was in no way contrived or posed as would often be the case with material designed to convey a connection betw;en a person's photograph and a commercial enterprise or i.ts products or services. -
Reference has already bccn made to the dynamic characteristics
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of the photograph. The impresslon conveyed -is that it was - taken in the course of actual competition at the Commonwealth Games at Edinburgh in 1986. There was nothing on the poster apart from the name and "logo" of the flrst respondent to suggest a commercial association or connection between the appellant and that organization. The name and "logo" were not in a prominent position on the poster - the focus of the viewer's attention would clearly have been the photograph itself. There was no express assertion that the appellant
endorsed the first respondent or its operations or activities.
Having regard to the nature of the groups to which the poster was principally directed, it may confidently be inferred
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that viewers of the poster were more likely than not to be
persons having a real interest in sport and sporting activities
either as participants or observers. It may further
confidently be' inferred that at least a proportion of those
vu71ewers would have bcen aware that the poster was one-of a
series distributed by the first respondent depicting sporting
activities, events or personalities. It must be recognised,
howeGer, .as the primary judge did, that the poster could also -
have bcen seen by members of the general publlc who would have
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varying degrees of interest in sport and sporting events and
personalities. It follows that knowledge that the poster was -
one of a series could not properly be attributed to all, or
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even most, of those who might view the poster. However, even those viewers who were unaware of other posters on a sporting
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theme distributed by the first respondent would, we believe,
have concluded from the general-nature of the poster, if they
thought about the matter, that it was likely to have - been
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published as one of a series. - We are satisfied that vlewers of the poster would have perceived it not as an advertisement or promotion of the services being offered by the first respondent, but rather as the promotion by the alrline of sport. It is not, however, inconsistent with that conclusion to say that many, if not most, viewers would have assumed that the first respondent had undertaken the task of producing and distributing posters of the kind exemplified by the one here in question because it pcrcelvcd that such activity would enhance its public image and so generate benefits to it in its commercial operations. But that is quite a different thing from saylng that by publication - of the poster the first respondent was representing that the appellant had approved the use of his photograph and endorsed, or was otherwise commercially associated with, the activities of the first respondent.
We agree with the conclusion reached by the primary judge that the poster would be seen "as an art work supporting
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partlcipatlon and excellence in sport and nothing more".
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The considerations relevant to the question whether the publication by thc second respondent of the book and the magazine - would have conveyed to persons who saw them the representations alleged by the appellant are, as his Honour acknowlcdqed, different. Thc nature and character of the viewers would certainly have been different from the nature and character of those who mlght have been expected to view the -
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bookshops would have been likely to see the book. Only such poster. Only those members of the public wlio vislted Christian persons, and those-who were subscribers to the magazine, would
have seen the offending issue.Other distinguishing features were that the appellant was not named in the book or the magazine and that any
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perceived association or connection would not be between the appellant and the publisher of the book but between the appellant and its theme or contents. The considerations to wliich the primary judge referred in the passage from his judgment set out earlier in these reasons also assist us in-
reaching, as we do, the same conclusion as that reached by his
Honour.
1; the result, the appeal is dismissed wlth costs.
I certify that this and the preceding 19 pages are a true copy of the Reasons for Judgment hereln of the Court.
Associate
Dated: 27 June 1990
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Counsel for the applicant Mr R.C. Macaw, Q.C. and
Mrs S.M. CrennanSollcltors for the appellant Meerkln & Ape1 - -
Counsel for the first Mr S.W. Kaye -
respondent
Solicitors for the flrst Elake Dawson Waldron respondent Counsel for the second Mr G.A.A. Nettle respondent Solicitors for the second Cornwall Stodart respondent Dates of hearing 23 and 24 October 1989 Date of judgment 27 June 1990
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