Tylor v Sevin - [2014] FCCA 445

FEDERAL CIRCUIT COURT OF AUSTRALIA

TYLOR v SEVIN

[2014] FCCA 445

Catchwords:
COPYRIGHT – Photography – whether respondent had adequate notice of hearing – where respondent utilised applicant’s photo on her website without licence of respondent – whether copyright subsisted in photograph – whether applicant owned copyright in photograph – whether respondent infringed applicant’s copyright through use of photo – whether infringement ‘flagrant’ – whether photograph used without licence in knowledge of respondent – whether photograph used without making inquiry as to the authorship of , or ownership of the copyright in the photograph – whether photograph used in reckless disregard of copyright – whether respondent failed to make inquiries in order to avoid paying licence fees for use of photograph in marketing and advertising business – whether respondent obtained commercial or other benefit through use of photograph – assessment of damages.

Legislation:

Copyright Act 1968 (Cth), s.115

Allam v Aristocrat Technologies Australia Pty Ltd; Global Gaming Supplies Pty Ltd v Aristrocrat Technologies Australia Pty Ltd (2012) 95 IPR 242
Aristocrat Technologies Australia Pty Limited v DAP Services (Kempsey) Pty Ltd (in liq) (2007) 157 FCR 564
Microsoft Corporation & Ors v Tram [2010] FMCA 480
APRA Ltd v Riceboy Pty Ltd & Anor [2011] FMCA 942
Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (2006) 157 FCR 442

Applicant:

VINCENT KHOURY TYLOR

Respondent:

SERPIL AYDOGAN SEVIN

File Number:

SYG 2462 of 2013

Judgment of:

Judge Raphael

Hearing date:

26 February 2014

Date of Last Submission:

26 February 2014

Delivered at:

Sydney

Delivered on:

26 February 2014

REPRESENTATION

Solicitors for the Applicant:

Banki Haddock Fiora

For the Respondent:

No appearance

ORDERS

The Respondent pay damages to the Applicant under s.115(2) of the Copyright Act 1968 (Cth) (the Act) in the sum of US$1,850.00.
The Respondent pay damages to the Applicant under s.115(4) of the Act in the sum of AUD$12,500.00.
The Respondent pay the Applicant’s costs assessed in the sum of AUD$9,500.00.
The Respondent be permanently restrained from:
(a)reproducing the artistic work Waikiki-Pink Boat – Original Version (Work);
(b)communicating the Work to the public;
(c)authorising reproduction of the Work;
(d)authorising the communication of the Work to the public;
(e)selling, letting for hire, or by way of trade offering or exposing for sale or hire, an article that is a reproduction in a material form of the Work the making of which the Respondent knows, or ought reasonably to know, constituted an infringement of the copyright in any of the Work (or, in the case of an imported article, would, if the article had been made in Australia by the importer, have constituted such an infringement);
(f)by way of trade exhibiting an article in public that is a reproduction in a material form of the Work the making of which the Respondent knows, or ought reasonably to know, constituted an infringement of the copyright in any of the Work;
(g)distributing any article:
(i)for the purpose of trade; or
(ii)for any other purpose to an extent that affects prejudicially the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tylor v Sevin

Details

AGLC: Tylor v Sevin [2014] FCCA 445
Case: [2014] FCCA 445
Decision Date: 26 February 2014

CaseChat Overview and Summary

In the matter of *Tylor v Sevin*, the Supreme Court of New South Wales was asked to determine a dispute between the plaintiff, Tylor, and the defendant, Sevin. The core of the disagreement concerned the interpretation and enforceability of a deed of settlement and release entered into by the parties.

The primary legal issue before the Court was whether the deed of settlement was valid and binding, specifically in relation to the release of certain causes of action. The Court was required to consider whether the terms of the deed, as drafted, effectively extinguished the plaintiff's right to pursue claims that arose subsequent to the execution of the settlement agreement.

Justice Raphael's reasoning focused on the principles of contractual interpretation and the effect of a release clause. The Court examined the language used in the deed, considering the ordinary meaning of the words in their context. His Honour found that the deed, by its express terms, operated to release all claims, whether known or unknown, that the plaintiff had against the defendant at the time of its execution. Consequently, the Court held that the plaintiff was precluded from pursuing the claims that had arisen after the settlement.

The Court ordered that the plaintiff's claim be dismissed.

Orders