A Montserrat company that produced a video about Soufriere Hills volcano has been ordered to pay EC$30,000 to a photographer for using his picture without permission.
Edge Enterprises, trading as People’s Television, used Kevin West’s photograph on the cover of the DVD entitled, ‘Montserrat Volcano Series: Volcanic Relations’ and claimed copyright.
West argued that the unauthorised use of the unique photo, which depicted the volcano erupting in 1997, meant he was no longer able to use it to generate revenue.
He described losses in potential earnings from postcards, posters, photobooks and from his profession as a carpenter of more than $300,000.
The civil case originally went before Justice Iain Morley QC of Montserrat High Court on 28 March, 2022, during which People’s Television accepted liability.
Then on 21 March, this year, Justice Dale Fitzpatrick examined the case in order to decide on an appropriate level of compensation.
He released his judgment complete with the court’s considerations on 30 April.
Red lava dome
Fitzpatrick described West as someone with an “enviable array of abilities” whose photography has been published in the New York Times and National Geographic magazine.
Meanwhile, the defendant, People’s Television, is a limited company that operated a television station and production facility in Montserrat, the judge said.
In the early hours of the morning in January 1997, West approached Soufriere Hills “at obvious and considerable personal risk” and took a photo of the radiant, red lava dome.
He titled the photo ‘Glowing Lava Dome’ and marketed it for sale to the public through several forums including postcards, posters and photobooks with his copyright noted.
Around 2012, People’s Television promoted a DVD exploring the eruption of Soufriere Hills and its impact on the community which it offered for sale to the public.
The cover of the DVD and promotional materials featured West’s photo without seeking permission, although it did not feature in the video itself, Fitzpatrick said.
The DVD also had the words ‘Copyright…People’s Television’.
Huge losses
West became aware of the unauthorised use of his photo and began action against the defendant in January 2019, seeking damages for copyright infringement.
In court he said the infringement left him unable to use the image to generate revenue or otherwise.
He suggested that if he tried to use the photo, he risked reprisal from People’s Television, which he said had claimed copyright.
The photographer said he believed the dispute needed to be settled before he could resume marketing and sale of the picture.
He also said he had needed to remain in Montserrat to address the litigation and as a result had to turn down carpentry work elsewhere.
West said his losses totalled more than $300,000 but sought $35,000 from the defendant as well as $13,500 in legal fees.
Reputational damage
In his witness statement, Denzil Edgecombe, director and principal of People’s Television said the company had not profited from the use of the West’s photo.
However, he could not recall how many DVDs were made, and he produced no business or other records to provide any information about the DVD production, marketing or sales.
In his conclusion, Fitzpatrick said the evidence before the court established that the defendant falsely attributed copyright ownership of the image to itself.
This caused reputational and economic damage to the claimant.
“The defendant’s infringing acts were done knowingly and warrant an additional award as deterrence,” he added.
The judge ordered People’s Television to pay $30,000 to West in compensation along with $6,000 in costs and interest.
