Supreme Court awards compensation for use of photograph

Facts
Tromsø 2018 AS is a limited company established in 2003 in order to bid for the 2018 Olympic Winter Games to be hosted in Tromsø, northern Norway. The company is owned by the municipality of Tromsø, the region of Troms and local business interests. In February 2007 Tromsø 2018 applied to the Norwegian Confederation of Sports to be appointed the Norwegian candidate for the 2018 Olympic Winter Games. In addition to the 1,000-page application, the company created a 28-page prospectus featuring highlights from the application. The prospectus included several photographs from the Tromsø area. The front page included three photographs, one of which showed a snowboarder in mid-air with the sky, sea and mountains as the background. The picture had been taken at a snowboarding event organised by The Arctic Challenge AS (TAC) in Tromsø in 2004. The snowboarder pictured was US citizen Andy Finch. TAC had organised snowboarding events in Tromsø for several years, which were among the most popular in the global snowboarding community.

Tromsø 2018 acquired the photograph from a press photographer in 2004 for a small fee. Tromsø 2018 printed 1,000 copies of the prospectus, with some sent to the Norwegian Confederation of Sports and several hundred distributed among the partners of Tromsø 2018. The prospectus was also available on the Internet.

As soon as the application became public, TAC objected to use of the picture. Shortly afterwards Tromsø 2018 created a new front page for the prospectus, replacing the picture. The internet version was also changed.

TAC and Andy Finch claimed compensation for unlawful use of the photograph. They lost before the district court and the appeal court, and then lodged a further appeal to the Supreme Court on the grounds that the appeal court had erred in its interpretation and application of the law.

Finch and TAC contended that Finch had the right to photographs of himself under Section 45C of the Norwegian Copyright Act. Tromsø 2018 noted that Section 58(3) of the Copyright Act provides that Section 45C can be relied on only by individuals who currently reside or have previously resided in Norway. Finch and TAC countered that this could not be taken literally, but rather should be interpreted widely or analogically so as to require only that the photograph had been taken in Norway. They referred to principles of international law, contending that even though the provision in the Copyright Act was not directly at odds with Article 8 of the European Human Rights Convention and Article 26 of the UN Convention on Civil and Political Rights, these conventions should nevertheless be taken into consideration when interpreting the act.

In the alternative, TAC and Finch contended that Finch had the right to the photograph of himself under non-statutory law protecting the personality of individuals. Such rules, they contended, have similar content to that of Section 45C of the Copyright Act.

Further alternative grounds for the claim were found in the Personal Data Act and the general provision on unfair competition in the Marketing Act.

Tromsø 2018 maintained that the appeal should be dismissed since Finch was not and never had been a resident of Norway, and there were no grounds to construe the law in a manner that went against the clear wording. Tromsø 2018 also argued that Finch was not important in the photograph. His face was not shown in the picture and he could be recognised only by a limited number of people who had a particularly thorough knowledge of the snowboarding community. This, Tromsø 2018 argued, would also be a relevant argument if the Supreme Court were to apply non-statutory principles of law. Tromsø 2018 also argued that since Finch was not easily recognisable and the photograph was in no way compromising or offensive, and was not part of a commercial marketing campaign, Finch’s non-statutory rights should be balanced against the principle of freedom of expression. It also denied any violation of the Personal Data Act and claimed that since the photograph was not used in the course of business, it could not constitute unfair competition.

Supreme Court findings
By a majority of four to one, the Supreme Court found for TAC and Finch, awarding Nkr80,000 (€9,700) in compensation and 11 times that amount in costs (which included costs incurred by TAC and Finch before the district and appellate courts).

The majority held that Section 58(3) of the Copyright Act should be understood to mean exactly what it says: that the protection awarded under Section 45C can be relied on only by individuals who are domiciled in Norway or who have been domiciled there. However, the majority also held that a non-statutory right applies to protect the personality of individuals. Its content is similar to that of Section 45C of the Copyright Act. The court referred to a 1952 Supreme Court judgment as a precedent confirming that such a right exists. As to the question of what the right is and what it covers, Supreme Court Justice Utgård (with three other judges concurring) found that in the case of individuals who are excluded from the statutory provision on residency grounds, resorting to the protection of photographs of the individual is particularly close at hand, especially when the photograph was taken in Norway and the individual has a definite financial interest in the commercial exploitation of the photograph and it is a question of use in Norway. Utgård noted that where a party has acquired a photograph from a press photographer, it is not implicit that the photographer has secured the right for the photograph to be exploited commercially. Tromsø 2018 was found to have been negligent by not ensuring that Finch had given consent for commercial use. The purpose of the company (ie, trying to win the 2018 Olympic Winter Games for Tromsø) was largely motivated by a wish to promote local business interests.

With regard to the compensation to be awarded, Utgård took Section 55 of the Copyright Act as a point of departure. He noted that no financial loss had been established, and that compensation for non-economic damage requires that the violation be proven to have been wilful or grossly negligent, neither of which was the case. Finally, determination of compensation on the basis of profits rendered was not relevant, since it was hard to establish whether Tromsø 2018 had reaped any profits from use of the photograph. Therefore, the court had to resort to non-statutory rules of compensation. Referring to the provisions of the Trademarks Act and the Patents Act, the court found that the award should constitute reasonable compensation for use. Although use of the photograph was not extensive, it had been taken at an event that had attracted significant attention and sponsors had paid considerable amounts of money to be involved in that event. The court also referred to some settlement agreements concerning unlawful use of photographs, but the judgment does not show how these considerations impacted on the assessment.The court held that Nkr80,000, which included interest, was reasonable compensation for the use of this photograph.

The minority, although agreeing with the majority that Section 45C of the Copyright Act could not be applied directly and that there is a non-statutory right protecting personality which could be relied upon in principle, found that the use of Finch’s personality in the photograph was secondary to its primary content and message, which was about fun and skiing in Tromsø’s beautiful scenery. Noting that Section 45C(b) makes an exception from the requirement for consent when “the depiction of the person is less important than the main content of the picture”, and stating that (at least) such a limitation should also apply to the non-statutory protection, the dissenting justice found that the photograph did not violate the protection of personality. She also discussed the other grounds invoked by TAC and Finch, finding against all of them.

Comment
The judgment is a good example of the pragmatic and practical approach taken by Norwegian courts when deciding issues that are not clearly or satisfactorily governed by statute. It also highlights a weak spot in the protection of individuals that have strong interests in the exploitation of photographs taken of them. The protection afforded under the Copyright Act and on the basis of non-statutory principles is closely linked to the protection of the personality and is not particularly concerned with any commercial interests that individuals may have. Even so, some protection of the commercial interests of non-resident individuals who have their picture taken is available. The majority, having decided the case on the basis of the non-statutory rules protecting the personality, did not deal with the other grounds invoked by Finch and TAC. Unfortunately this leaves unanswered the question of whether the unfair competition argument could have carried the day.