Infringement of the copyright to a pho-tograph of the Danish politician Lars Løkke Rasmussen (chairman of Venstre - The Liberal Party of Denmark)

On 30 January 2015 the Danish Eastern High Court passed its judgment in a case about the Danish political party "Liberal Alliance's" use of a photograph of the Danish politician Lars Løkke Rasmussen in Liberal Alliance's political campaigns.

In spring 2012 Liberal Alliance placed fullpage advertisements with a photograph of Mr Løkke Rasmussen in the Danish newspapers Berlingske Tidende and Politiken as a part of a campaign with the headlines "Deal breaker!" and "Social Democrat?". One of the advertisements said:"If it talks like a duck and walks like a duck, it probably is a duck".

However, the judgment passed by the Danish Eastern High Court was not about whether the chairman of Venstre is a duck, but on the contrary whether Liberal Alliance infringed copyright by using the photograph of Mr Løkke Rasmussen in the advertisements.

The photograph of Mr Løkke Rasmussen was taken by Steen Larsen as a part of an agree-ment with Venstre to photograph some of the members of the party. The photographs were to be used in Venstre's election campaign. During the case it became known that Mr Larsen is a professional photographer and that he received DKK 600-700,000 exclusive of VAT in payment of all costs relating to the job. The photograph of Mr Løkke Rasmussen was subsequently made public on a subpage on Venstre's website under the text "Click here to get a large printer-friendly photograph".

It was undisputed that Liberal Alliance had downloaded the photograph from the website and that Mr Larsen held the copyright to the photograph.

Liberal Alliance claimed that the fact that the photograph had been made available on Venstre's website with the above text was a permission to use the photograph in connection with political campaigns etc. However, the City Court of Copenhagen, which heard the case as the court of first instance, found that the availability of the photograph was not consent to use the photograph for any other purpose than news coverage. As political campaigns are not news coverage, Liberal Alliance had infringed Mr Larsen's copyright.
 
The principle of moral rights, according to which the author is entitled to be named in connection with his/her work, had also been violated as Mr Larsen's name did not appear from the advertisements. The City Court of Copenhagen also found that the photograph had been available to the public in such a manner that was offensive to Mr Larsen. The reason was that Liberal Alliance used the photograph in a campaign against Venstre that had hired Mr Larsen.

The City Court of Copenhagen found that Liberal Alliance's conduct had been grossly negligent by failing to comply with the Danish Consolidated Act on Copyright and it awarded Mr Larsen DKK 30,000 as reasonable remuneration for the use of the photograph in three instances. The remuneration amount was fixed taking into account that the photograph was used in full-page advertisements in national newspapers. Mr Larsen was also awarded DKK 15,000 for non-financial damage under section 83(3) of the Danish Con-solidated Act on Copyright.
 
But it had not been proved that Mr Larsen had suffered a loss as a result of Liberal Alliance's infringement of the copyright and as a consequence there was no basis for awarding him damages. 

Considering that Liberal Alliance had grossly violated the Danish Consolidated Act on Copyright, it was a criminal offence which the City Court of Copenhagen punished by fining Liberal Alliance DKK 10,000.

Liberal Alliance appealed the judgment to the Danish Eastern High Court that affirmed the judgment passed by the City Court of Copenhagen in respect of reasonable remuneration, a non-financial loss and damages. However, the Danish Eastern High Court reversed the City Court of Copenhagen's decision in respect of the costs. The City Court of Copenhagen had ordered each party to bear its own costs, but the High Court ordered Liberal Alliance to pay DKK 30,000 in partial costs to Mr Larsen. The reason was that Liberal Alliance's proposed settlement of DKK 35,000 had only been made after the parties' correspondence and the writ of sum-mons had been issued and taking into account the case's value, scope and importance.
 
The case emphasises that it is important to get the author's consent to exploit a work, also even if the work is easily available on the internet.

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