Judge: Event producer infringed photographer's copyright

AN event promoter from Tobago was found to have infringed the exclusive copyright rights of a local photographer who now lives in New York by using one of his photographs to advertise the Tobago Fashion Coda 4 event in 2016.

Justice Ricky Rahim ordered Donald Grant to compensate NY-based photographer Sean Drakes for infringing the latter’s copyright on the photograph of The Dying Swan Ras Nijinsky in Drag as Pavlova.

The quantum will be assessed by a High Court Master.

Drakes, who visits TT from time to time to document Carnival activities as part of his international portfolio of work, took the photograph of the Peter Minshall-designed costume on January 28, 2016, at the Kings and Queen of Carnival competition at the Queen’s Park Savannah, Port of Spain.

As an active contributor to Getty Images, a news aggregation service that provides copies of contributors’ work to newspapers and medial outlines worldwide, Drakes uploaded the image to Getty, as he usually did.

His evidence was that such images are used solely for editorial purposes and not for commercial use such as advertising or marketing. He also said he had accreditation from the National Carnival Commission.

He said on April 4 that year, he saw an advertisement poster for the Tobago Fashion Coda 4 on the newsfeed on his Facebook page. An enlarged version of the poster was also featured at the ANR Robinson International Airport in Tobago.

Drakes testified he did not discuss or enter into any agreement with Grant for use of the image for advertising, promoting or marketing the event, and it was his original intellectual creation as the sole original author of the work. He contended he held the exclusive right to authorise or prohibit reproduction, public display or communication to the public through the photograph.

He said he had discussions with Grant, who first agreed to pay him $5,800 for the image, but then refused to pay.

In his decision, Rahim found that Drakes authored the photo, or created the work, and there was no evidence from Grant to dispute that. He also held that copyright rights were created when the photograph of the mas was taken, and were independent of and distinguishable from the copyright rights attached to the costume itself.

“The court therefore finds that upon creation of the photograph by the claimant, the claimant became the author of the photograph which was his original intellectual creation. It follows that he did in fact hold copyright in the photograph,” Rahim found.

In deciding whether Grant breached Drakes’s copyright, Rahim said by copying, reproducing or adapting the photograph, he did.

Drakes was represented by attorney Jason Nathu.