Ricky Rahim

An event promoter has been ordered to pay compensation to a United States-based photographer, whose photograph was used on an event poster without his permission.

Delivering a judgement, late last week, High Court Judge Ricky Rahim upheld Sean Drakes’ copyright claim against Donald Grant.

The lawsuit centred around a photograph of a Carnival costume designed by fabled mas designer Peter Minshall entitled “The Dying Swan, Ras Nijinsky in Drag as Pavlova” that he took at the Queen’s Park Savannah on January 28, 2016.

The moko-jumbie and ballet-themed costume, portrayed by masquerader Jha-Whan Thomas, received widespread acclaim during the 2016 National Carnival King and Queen competitions but failed to win.

According to the court filings, shortly after Drakes’ photograph was uploaded to Getty Images, he learned that it had been used in a poster for a “Tobago Fashion Coda 4” event, which was organised by Grant.

Drakes contacted Grant via social media and he (Grant) initially agreed to pay Drakes $5,800 for use of the image.

However, Grant eventually refused to pay as he cited Drakes’ accreditation with the National Carnival Commission (NCC), which he claimed precluded Drakes from using images of costumes for commercial purposes.

In his judgement, Rahim ruled that the photograph was Drakes’ original intellectual creation.

“It requires a professional effort from the photographer which is only obtained through experience, effort by way of the exercise of known and unknown techniques of photography as a matter of judgement and labour,” he said.

Dealing with the accreditation agreement, which advised holders to seek permission from designers and masqueraders before using images of them and their work for commercial purposes, Rahim ruled that there were two separate copyrights, one for the costume and the other for the photograph.

While he said that copyright issues may arise between artists and photographers, he noted that the NCC’s accreditation did not cover copyright infringement.

“When viewed from that perspective it becomes clear that the issue of copyright grant or infringement is not one for the NCC and the failure of an accredited person to obtain permission or copyright from the artist is only relevant to the NCC in so far as access may be denied to events where such permission or copyright was not obtained save and except that no such permission and copyright is required where the use is solely for the purpose of news,” he said.

After finding that Drakes held the copyright over his photograph, Rahim ruled that there was were several similarities between it and the poster that was produced for Grant’s event.

“The court, therefore, is of the view that the similarities are sufficiently close, numerous or extensive to be more likely to be the result of copying than of coincidence,” Rahim said, as he noted that the poster was briefly displayed at the ANR Robinson International Airport in Tobago.

Rahim also rejected Grant’s claim that Drakes did not provide his agreement with Getty Images, which may have affected his copyright rights.

Rahim said he had no reason to doubt Drakes’ claim that his agreement with the international agency only covered the use of his photographs for news purposes.

“In that regard, the fact that the claimant has not exhibited his agreement with Getty does not make his evidence thereon unbelievable and the court accepts his evidence on same in the absence of any other evidence to the contrary,” he said.

Although Rahim ordered that Drakes should be compensated, he did not calculate it, as he referred the assessment of damages to a High Court Master.

Drakes was represented by Jason Nathu, while Derrick Redman represented Grant.