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It was The Sun wot lost it

19 March 2004 - EPUK

Nicking a photograph and claiming that there wasn’t time to ask permission before publication is very naughty. “Publish and be damned” is unlawful said the judge in the case of the Princess and the Sun.

What is known as The Banier Judgement is referred to in many documents about intellectual property rights. Its main value is in defining the limits of “Fair Use” defence by newspapers and magazines.

Additionally it accepts foreign domicile for copyright actions in the UK, does not accept the excuse that “sloppy paperwork” is a defence and very effectively scotches the idea that if an editor believes a picture has been given freely to one paper, it too may have free use. (The free use issue was challenged.)

Because photographers do not communicate about copyright breaches if they are brow beaten by company lawyers we do not know how many times photographers have backed down in similar cases

Unfortunately we do not know how much the Sun settled for.

Although you can find lots of references on Google to the Banier Judgement it is very hard to find the real thing. The PDF file has been created from a direct copy of the original document. At nine pages, including cover, it has a wonderful well written and almost ironic quality. The Hon Mr Justice Lightman is a master of concise prose and should be congratulated on putting The Sun in its place.

What would be very interesting is if anyone suffers a similar breach of copyright by either the Sun or the Times Group they would have a a case under Section 107 of the UK Copyright Act. This means that just like those heavies who destroy equipment used in pirating videos and computer software in theory a photographer could go into The Times and confiscate all their computers, photocopiers and other equipment which enabled them to handle the infringed work. You could also demand that Rupert Murdoch be prosecuted and sent to jail for six months. Neither the Sun nor the Times could claim ignorance of the law when the law of precedent is a case that they lost.

PDF DOWNLOAD: Banier v News Group Newspapers Ltd, the High Court of Justice, London, 19 June 1997

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