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Fox v Percy (2003) 214 CLR 118

Gleeson CJ, Gummow and Kirby JJ


Facts: The case of Fox v Percy (2003) 214 CLR 118 HCA involved a dispute over the ownership and copyright of a photograph taken during the Sydney Olympic Games in 2000. Roberta Fox, a professional photographer, captured an image of Cathy Freeman, an Australian sprinter, carrying both the Australian and Aboriginal flags after winning a gold medal. Fox later sought to enforce her copyright and claimed that her permission should be obtained before the photograph could be used.


The respondent in the case, Tony Percy, was the editor of The Sydney Morning Herald (SMH) newspaper. Percy reproduced the photograph without obtaining Fox's permission, arguing that the photograph was taken in a public place and, therefore, no permission was necessary. Fox disagreed and contended that her photograph should be considered an artistic work protected by copyright law.


Issue: The High Court of Australia considered two main issues in this case:


1. Whether the photograph could be considered an artistic work protected by copyright.

2. Whether the reproduction of the photograph constituted a fair dealing for the purpose of reporting the news.


Regarding the first issue, the High Court of Australia (HCA) held that the photograph taken by Fox was an artistic work protected by copyright. The Court recognized the skill and creativity involved in capturing the moment and deemed the photograph to possess the qualities of originality and expression required for copyright protection.


However, on the second issue, the Court found in favour of Percy. They concluded that the reproduction of the photograph by The Sydney Morning Herald (SMH) constituted a fair dealing for the purpose of reporting the news. The Court emphasized the importance of freedom of the press and held that the reproduction of the photograph was within the bounds of legitimate news reporting and public interest.


Conclusion: In summary, while Fox's photograph was deemed to be protected by copyright, its reproduction by The Sydney Morning Herald was considered a fair dealing for the purpose of reporting news, thus not infringing on Fox's copyright.


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