Norwegian Supreme Court Decision about the Right to One's Own Picture
05. January 10
In a recent decision by the Norwegian Supreme Court, the snowboarder Andy Finch is granted compensation for unlawful use of a photograph picturing him.
In a judgment from the Norwegian Supreme Court of December 10, it was decided that
it is not always sufficient to make an agreement with the copyright holder of
a photography in order to use the photo. In certain cases is it also necessary
to obtain consent from the person depicted prior to using the photography for
commercial purposes.
In the present case, the Norwegian company The Arctic Challenge (TAC) and the
snowboarder Andy Finch raised a law suit against Tromsø 2018 AS. The dispute started
after Tromsø 2018 used a picture of Finch in performance over mountains, ocean
and sky in the Norwegian city Tromsø. The picture was used in marketing material
for promoting the city Tromsø as a candidate for arranging the Olympic Winter Games
in 2018.
The photography was taken by a Norwegian photographer under a snowboard event
in Tromsø in 2004. Tromsø 2018 AS had bought the photo from this photographer
and they argued that they were entitled to use the photo. Finch was never asked
for permission prior to the use of the photo.
Finch/TAC lost the law suit totally both at the District Court and the Appeal
Court. The Supreme Court reached nevertheless a different conclusion.
The legal challenge in this case was that as an American citizen Andy Finch was
not protected by the Norwegian Copyright Act. According to article 45c in this
act a photography with a picture of a person may not be used in public without
the persons permission. According to article 58 the person must be domiciled in
Norway at that time to be protected by the law.
Contrary to the previous court instances the Supreme Court reached the conclusion
that the right to one's own picture is so strongly founded in personal security
rights that an equal right as established in the Norwegian Copyright Act also
exists for foreigners such as Finch.
The Supreme Court concluded that Tromsø 2018 AS had to pay a compensation of
NOK 80.000, for the unlawful use of this picture. Additionally, Finch and TAC
were awarded the costs for all three Court instances.
The judgment was passed under dissenting votes 4-1.
The decision may be found at
Lovdata.
