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Copyright automatically protects photographs in New Zealand. This means that if someone uses your photograph without your permission, they may be infringing on your copyright. Copyright infringement is a serious matter and can negatively impact your work or business. However, you can take action to stop the infringement. You may also want to seek some type of compensation for the infringement. This article will show you how to claim damages after someone has infringed on the copyright of your photograph. 

What is Copyright?

Copyright is an intellectual property right that protects your original work. It applies automatically when you create a work. Copyright protected work include the categories below:

  • literary, dramatic, musical and artistic works; 
  • the typographical layout of published editions; 
  • sound recordings; 
  • films; and 
  • communication works. 

Copyright protection can last up to 50 years after the creator’s lifetime, but this varies depending on what kind of work it protects. 

If you are a copyright owner, you can use the © symbol to show others that your work is protected. However, this is not a requirement. 

Copyright protection includes:

  • the right to copy and use your own work;
  • the right to stop others from copying and using your work; and 
  • legal protection.

Copyright Infringement of Photographs

Copyright law in New Zealand can stop others from copying your work without your permission. It is an infringement of your copyright if someone does not have your permission before using the work. Therefore, if you suspect that this is the case, you may be able to take legal action. This can result in the matter being resolved in court. A court may even award damages to the copyright owner. 

However, one thing to note is that copyright law allows a certain number of exemptions to copyright infringement. These actions are called fair dealing. Under these circumstances, the use of your photographs could be allowed under these provisions. The fair dealing exception allows use of copyright protected material for the following purposes:

  • research;
  • private study;
  • criticism or review; and
  • reporting current events.

The use of the work must also fair. Whether use is fair will depend on the circumstances of the use.

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Claiming Damages

If you believe that somebody has infringed your copyright, you may choose to take legal action against the infringing party. The courts can provide a range of remedies to compensate and acknowledge the rights of copyright owners, including:

  • interim injunctions,
  • search orders for the preservation of evidence,
  • damages or orders to account for profits; and
  • ‘mandatory’ injunctions.

In some circumstances, you can also make a copyright infringement complaint to the Ministry of Business, Innovation and Employment (MBIE). MBIE will decide whether or not a criminal investigation or prosecution is needed to deal with the matter. 

Calculating Damages

If you would like to claim damages for someone infringing on the copyright of your photographs, you should make this clear during any legal proceedings. Importantly, it is always best to seek legal advice whenever you go to court. Lawyers know the ins and outs of the courtroom and can provide meaningful insight into your case.

Whether or not you receive damages, and the amount of the damages, will depend on all of the specific circumstances of the matter. These are some of the most common ways damages are assessed and awarded:

The amount of profit you lost

Damages can be calculated by assessing the amount of profit you have lost as the copyright owner. For example, a loss of sales as a result of the infringement.

The amount of profit the infringer gained

The court will consider the profit the infringer has made as a result of copying or using your photographs. The courts could then order the infringer to pay an account of profits. This means that the court could award you all of the profits made due to the infringement.

Additional damages 

You may receive additional damages when the infringement was done in flagrant disregard of the copyright owner’s rights. This may mean it was intentional, the infringement is particularly serious, or there is a need to deter similar copyright breaches in the future. The amount of the additional damages will depend on the particular facts of the infringement. 

Key Takeaways

Seeking damages after someone has infringed on your copyright may be one option for you. If you wish to take this path, it would be wise to seek legal advice. In some cases, this matter could end up in court. Here, you may be awarded damages. There are a few different ways to assess damages, and this will likely depend on the circumstances of the infringement.

If you need help with copyright, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0800 005 570 or visit our membership page.

Frequently Asked Questions

What is an injunction?

An injunction is a legal order to stop an action. So, for copyright infringement, the court may order the infringer to stop using the copyrighted work.

Do I have to have a copyright symbol or notice to have copyright protection?

No, copyright protects your work with or without labelling.

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