Red Bubble off the hook in Hells Angels copyright case

Written on the 18 March 2019 by Business News Australia

Red Bubble off the hook in Hells Angels copyright case

A website that allows independent artists to sell print on demand (POD) designs online has avoided hefty damages after the Federal Court of Australia ruled in its favour in a copyright case brought by Hells Angels Motorcycle Corporation.

The bikie gang was suing Melbourne-based Redbubble (ASX: RBL) for publishing Hells Angels trademarks on its site in various paraphernalia including T-shirts and posters, which had reportedly been removed.

The case was initially filed in 2015 and disclosed in Redbubble's 2016 prospectus.

The Judge found in Redbubble's favour and dismissed all of Hells Angels' claims in relation to the copyright and consumer law causes of action, but there was still a finding of technical trademark infringement.

This led to the Judge awarding nominal damages of $5,000 whilst declining to award exemplary damages. 

Redbubble has stated it will consider its position on a possible appeal once final orders have been made.

"Since our founding in 2006, the Redbubble marketplace platform has provided over 800,000 independent artists with access to economic opportunity via an innovative model that supports user generated content (UGC). We have helped these artists earn over $100 million to date," says Redbubble chief legal officer Corina Davis.

"In parallel, we have worked constructively with content owners to manage the challenges that UGC on the Internet creates, following the helpful guidelines of the US Digital Millennium Copyright Act.

"We have had very few instances of litigation in our history because we work to find pragmatic and low cost solutions for parties to collaborate together to address infringement. The outcome of this case demonstrates that collaboration is a better approach for all parties."

Davis emphasises the company's processes have become more sophisticated since the Hells Angels case was first lodged, and this remains an area of investment.

"Importantly, our relationships with rights holders have progressed to a point where we now are entering licensing partnerships to utilise the UGC of independent artists to create fan art that our mutual customers love," she says. 

The company notes the $5,000 damages are not material, similarly to a 2017 Federal Court decision that awarded a nominal $1 in damages to Pokémon.

An appeal is currently before the Full Federal Court for that decision, which found while Redbubble did have a user agreement with artists as well as an intellectual property policy including a team dedicated to dealing with impermissible content, its notice and takedown system was not good enough.

The court suggested Redbubble could prevent artist users from using certain tags or keywords; measures that were implemented after legal proceedings had started.

According to the Australian Copyright Council, the court rejected Pokémon's claim to some $44,555 in damages for lost sales as most of the infringing items were mash-ups for which Pokémon would not have received royalties. 

The council notes the under the US Digital Millennium Copyright Act, websites like Facebook, Twitter, Instagram and Tumblr are not liable for hosting copyright infringing content so long as they have a a notice and takedown system in place. Australia does not have similar legislation however.

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