Matthews, Grant v ACP Publishing Pty Ltd [1998] FCA 1122

Matthews, Grant v ACP Publishing Pty Ltd [1998] FCA 1122

The Federal Court possesses the jurisdiction and statutory power to award damages, in addition to or in lieu of an injunction, for breach of the statutory right of restraint under s 35(5) of the Copyright Act 1968. Where a photographer's work is used outside the specific purpose agreed, and an injunction (or its equivalent) is granted, compensation for the lost opportunity to negotiate a further licence fee is appropriate. In this case, such damages should be calculated on the value of the lost chance to negotiate, assessed broadly based on industry practice and the hypothetical negotiation between the parties.

Parties
Applicant: Grant Matthews; Respondent: ACP Publishing Pty Limited
Jurisdiction
Australia
Judgment Date
10 September 1998
Procedural Posture
Application (copyright) / Judgment After Hearing
Outcome
Applicant awarded damages; respondent's undertaking accepted in lieu of injunction.
Legal Topics
Statutory Right of Restraint Under Copyright Act S 35(5), Damages in Addition to Injunction, Scope of Copyright Assignments, Breach of Agreement Regarding Use of Commissioned Work
Intellectual Property Copyright Statutory Right of Restraint Under Copyright Act S 35(5) Damages in Addition to Injunction Scope of Copyright Assignments Breach of Agreement Regarding Use of Commissioned Work

Case Brief

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Parties

Grant Matthews

Applicant

ACP Publishing Pty Limited

Respondent

Procedural Posture

Application (copyright) / Judgment After Hearing

Legal Issues

  1. 1 Whether applicant is entitled to relief beyond restraining use of photograph under s 35(5) Copyright Act 1968
  2. 2 Whether damages are available for breach of statutory right of restraint under s 35(5)
  3. 3 Whether damages can be awarded in addition to or in lieu of injunction (or undertaking)

Ratio Decidendi

The Federal Court possesses the jurisdiction and statutory power to award damages, in addition to or in lieu of an injunction, for breach of the statutory right of restraint under s 35(5) of the Copyright Act 1968. Where a photographer's work is used outside the specific purpose agreed, and an injunction (or its equivalent) is granted, compensation for the lost opportunity to negotiate a further licence fee is appropriate. In this case, such damages should be calculated on the value of the lost chance to negotiate, assessed broadly based on industry practice and the hypothetical negotiation between the parties.

Court Disposition

Applicant awarded damages; respondent's undertaking accepted in lieu of injunction.

Orders

  • Respondent gives undertaking to the Court in the terms of para. 3 of the applicant's application dated 9 September 1997.
  • Respondent to pay applicant the sum of $1,650.00.