INFRINGEMENT ABROAD - WHOSE LAW CONTROLS?

A troubling issue that surfaces from time to time is what to do when an image is infringed in a foreign country. The United States Court of Appeals for the Second Circuit, has recently clarified two of the thornier problems, in Itar Tass Russian News Agency v. Russian Kurier, Inc. These issues are which laws apply to the question of copyright ownership, and which applies to the question of copyright infringement.

The Court determined the first issue as to copyright ownership by stating that "the law of the country with the closest relationship to the work will apply to settle the ownership question". Generally, the Court said, this would be the country where the work originated. Of course, however, this pronouncement may require an analysis of the evidence in each case to determine the degrees of the "relationship" to each country.

The Court then went on to determine the second issue - whose law would apply to determine the issue of copyright infringement - by holding that the law of the place where the infringement took place controls. Thus, a copyright claim may require application or interpretation of the laws of more than one country.

It is, however, not entirely clear how this test is to be applied in a situation where a photographer creates numerous images in different countries, say on an African photo safari, which was published without consent by a European magazine distributed worldwide!