Court Of Appeal Upholds Copyright Infringement Finding for use of Photographs on Website

In the recent case of Grisbrook v MGN Ltd and others [2010] EWCA Civ 1399, the Court of Appeal considered whether a newspaper's archive website could operate to infringe copyright in a freelancer's photographs. The court found that it was possible for such use of copyright works in an archive to be an infringing use even though the newspaper may own the copyright in the compilation featuring the photograph. In doing so, the court upheld the first instance decision of Patten LJ, finding that where an implied copyright licence is created, the extent of this licence should be limited to the uses in the contemplation of the parties at the time that the licence is created and that this should be construed narrowly.

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The case before the Court of Appeal concerned an action for contempt of court constituted by breach of an undertaking given in a settlement of an earlier action. In this earlier case, Mr Grisbrook, a freelance photographer, brought an action for copyright infringement against MGN Ltd ("MGN"), publisher of the Daily Mirror. Mr Grisbrook had supplied photographs to MGN between 1982 and 1997 for publication in the paper. There was no written agreement in place between the two parties but it was common ground that Mr Grisbrook would retain the copyright in the photographs. The agreement was that MGN would pay for the use in the edition in which the photograph was published, with any subsequent use in a paper on a different day attracting a further fee. MGN could retain the photos for future use in the MGN picture library. In October 1997, Mr Grisbrook wrote to MGN stating that he was terminating any licence to use his photographs. MGN subsequently made the photographs available on its website, mirrorpix.com. The action was settled under a consent order and MGN undertook not to infringe Mr Grisbrook's copyright and to delete Mr Grisbrook's material from any electronic storage system. Subsequently, in 2008, Mr Grisbrook sought sequestration of MGN's assets for contempt of court constituted by the breach of its undertaking. Since the date of the undertaking, MGN had set up a number of other websites. One of these websites enabled users to access the front page of the Daily Mirror from 1903 to the present day. Similarly, another of the websites was an online research source holding archives of the newspaper from 1903. Mr Grisbrook's photographs were therefore visible on these...