APPEAL COURT RULES ON REPRODUCTION OF ALBUM COVER ARTWORK
The photographer of a picture used as art work for a music album filed a lawsuit against Åhléns, a department store which unlawfully reproduced the artwork of the album in a product catalogue and infringed the photographers’ paternal rights.
Music publishing company EMI published an album with songs and music by the well-known Swedish troubadour Evert Taube. The album cover featured a photograph of the artist taken by a photographer who had granted EMI the right to use the picture on the cover of the album. EMI distributed the album to Åhléns, a chain of department stores which retails EMI products. Åhléns published an advertising catalogue which, among several other pictures of album covers, contained a picture of the album cover by Evert Taube. The photographer initiated a lawsuit against Åhléns claiming that it had infringed his copyright in accordance with the Act on Copyright in Literary and Artistic Works by unlawfully reproducing his work as well as by not stating his name in connection with the picture in the catalogue.
District Court Decision
The Stockholm District Court found that by making the catalogue, Åhléns had reproduced copies of the work. Since Åhléns had not proved that it had a right to use the picture based on either an agreement with the photographer or common practice in the industry, the court ruled the reproduction to be unlawful. However, the court stated that in this context, proper usage does not require that the name of the photographer be stated. Therefore, the photographer was awarded Skr5, 215 of the Skr17, 047 that he had claimed. He appealed to the Court of Appeal.
Court of Appeal Decision
The Court of Appeal found that the right to reproduce the artwork had been granted to EMI. Since the photographer did not explicitly oppose the transfer of this right, EMI was entitled to transfer it to a retailer for marketing purposes. Furthermore, the photographer had not opposed the EMI's right to use the photograph for marketing purposes in retail store windows. The Court of Appeal further established that the subject of such marketing is not the photograph, but the product in its packaging (ie, the CD case), and that the same applies to the production of an advertising catalogue in which the CD case is pictured. Thus, such production was not considered to constitute reproduction of the photograph and, accordingly, Åhléns had not infringed the photographer’s copyright.
Comment
The decision demonstrates the importance of separating an artistic work itself from a product that incorporates that work when establishing the subject of reproduction. Nevertheless, practical queries may arise as to where to draw the line in similar cases. Future rulings may be required on how the law should be applied to album artwork that contains no text or logotype and to other types of advertising material.
For further information on this topic please contact Per Eric Alvsing or Anna Moller at Advokatfirman Vinge KB by telephone (+46 8 614 30 00) or by fax (+46 8 614 31 90) or by email (per_eric.alvsing@vinge.se or anna.moller@vinge.se).