Interpretation of License Agreements for the Use of Photographic Works in Sweden – Commentary

Introduction
Facts
Patent and Market Court
Court of Patent and Market Appeals
Comment

Introduction

The commercial use of photographic works under license or assignment raises well-known legal challenges for both the licensee and the licensor. A recent case(1) from the Court of Patent and Market Appeals relating to the exploitation of photographic works as part of a Holocaust memorial exhibition recalls many of the challenges inherent in interpreting contracts assignment of copyright, such as clearly defining the scope of the license and how the moral rights of the photographer are to be managed. Sometimes even fairly standard licensing agreements end in litigation, and in such situations, this case also serves to illuminate some common pitfalls for litigants.

Facts

The plaintiff was a Swedish photographer who had planned a photographic exhibition, highlighting Holocaust survivors and interviewing them with the aim of preserving their memories for generations to come. The accused, the Raoul Wallenberg Academy for Young Learners, was a non-governmental organization (NGO) that promotes human rights. It has partnered with the applicant to finance and organize the exhibition.

The parties have entered into an agreement for the claimant to deliver certain portraits and record interviews with Holocaust survivors for use in the exhibition for a certain fee. The still portraits and interviews were then used both in a museum exhibition and in a mobile application used on the museum grounds, as well as on the NGO’s social networks and at certain marketing events. . It didn’t take long for it to become abundantly clear that the parties were interpreting the agreement very differently, and after letters went back and forth, they went to court.

Patent and Market Court

Faced with the parties’ widely differing interpretations of the scope of the agreement, the Swedish Patent and Market Court of First Instance first had to assess the circumstances under which the agreement was made. The Court found that the parties’ plan from the outset was for the exhibit to have a digital component with a mobile app and that the exhibit would then be filmed and exhibited in Swedish schools. Since the copyright actions alleged to constitute infringement (both the making of copies of the photographic works and the making available of the works to the public) were found to be explicitly governed by the agreement between the parties, the court unsurprisingly concluded that these actions should be assessed under the agreement, rather than under applicable Swedish copyright law.

Interpreting the agreement, the Court concluded that the photographer (claimant) owned all intellectual property rights in the outputs (i.e. portrait photographs and interviews) to be provided and that the NGO (the defendant) had obtained a license to use the results. and the copyright conferred thereon upon payment of a royalty. The rights granted to the defendant were broad in nature, including a right to sub-license, in exchange for additional payment to the photographer. As is usually the case in Swedish copyright disputes concerning the interpretation of copyright assignments, the Court interpreted the agreement using common legal principles of contract interpretation, as well as than the two specific doctrinal principles of legal interpretation recognized (although rarely considered conclusive) by Swedish copyright case law. :

  • the so-called “principle of specialty”, which dictates that copyright assignments should be interpreted narrowly; and
  • the so-called “principle of specification”, which states that ambiguous clauses in such agreements should be interpreted in favor of the copyright holder.

A major disagreement between the parties was whether the license granted to the defendant in the agreement was limited to the term of the agreement or whether it was perpetual in nature. On this point, the Court concluded that a simple reading of the clause suggested a license that was not limited to the duration of the agreement and that this interpretation was supported by testimony. Simply put, it was found that the plaintiff was well aware that the defendant had intended to use the materials for several years and that this had been stated quite clearly in the text of the agreement.

Neither the exhibition of the photographic works at the museum, nor the use of the works at certain events, on the mobile application or in the defendant’s social media, was found to be contrary to the spirit or the wording of the OK. The use that third parties (i.e. the museum and the social media platforms respectively) had thus made of the results was not considered a sub-licensed use under the agreement, much less as a use that would result in additional remuneration for the applicant.

As to the photographer’s moral right to be mentioned as an author or photographer under Section 3 of the Swedish Copyright Act, the claimant argued that her name had not been correctly mentioned at some point in the mobile application interface. The Court considered that the evidence adduced was not sufficient to establish a violation of the plaintiff’s moral rights. Since the plaintiff had the burden of proof, this argument also fell flat. In the end, the plaintiff won his case on no point and was ordered to pay all of the defendant’s legal costs of approximately €100,000.

Court of Patent and Market Appeals

The Patent and Market Court of Appeal upheld the decision of the Patent and Market Court. In interpreting the agreement between the parties, the Court methodically went through the various provisions of the relevant clauses and confirmed the lower court’s interpretation of them and their practical meaning for the parties and the exhibit. In several cases, the Court pointed out that the evidence adduced was lacking and did not show what it purported to show.

Comment

This case is a timely reminder that copyright litigation in Sweden – and probably elsewhere – often boils down to careful analysis of what the documents relied on in a case actually establish as facts in the case, rather than a complicated application of general principles of law and a balancing of interests in favor of the little guy. Likewise, the plain wording of an assignment agreement is sometimes clear enough to withstand onslaught on all legal fronts. It is important to keep this in mind in copyright litigation, especially in cases where the authors have a close connection with the works and their exploitation.

For more information on this subject, please contact Hans Eriksson to Westerberg & Partners Advokatbyrå Ab by telephone (+46 8 5784 03 00) or by e-mail ([email protected]). The Westerberg & Partners Advokatbyrå Ab website can be accessed at www.westerberg.com.

Endnotes

(1) PMT 4780-2.

Michael E. Marquez