Tame Iti may have case against magazine, says expert

Tame Iti said he was offended by the advertisement.

Maori activist Tame Iti could have a case against a German photographer or an English magazine after a photo originally taken for a Maori tattoo article ended up in a security systems advertisement, a copyright expert said today.

The advertisement, with the words "How do you warn off intruders?" shows a bare-shouldered Mr Iti wielding a taiaha (spear) and poking his tongue out.

Senior associate at intellectual property law firm AJ Park, Simon Fogarty, said the issue of copyright surrounded Mr Iti's moko.

"The moko itself is probably a copyright work, and so if a photo is taken, that would be a reproduction under the Copyright Act.

"Now the original photo was authorised, so on what we know, that would not be an infringement of copyright."

But Mr Fogarty said issues arose with unauthorised reproductions of the photo in other publications -- and every publication with the photo is a reproduction.

"They are probably infringing copies because the purpose for which they have been produced hasn't been authorised by Tame Iti."

There were two other minor aspects related to the photo.

"One would be whether there is a 'passing off' issue, which means if he is known -- and he probably isn't -- in the UK, like a David Beckham-type, and someone has used his image to promote their product without his authorisation, then they've gained the benefit of his reputation, so he'd have a course of action for passing off."

Mr Fogarty said the second aspect was to do with defamation, and whether the photo would be detrimental to his character.

"But if he's not known in the UK and he's not going to suffer, then that's probably another red herring," he said.

If Mr Iti wants to sue the German photographer and/or the publication, his case would have to be heard in Britain, because that is where the reproductions happened.

"To me he looks like he has, on the facts available, a course of action," Mr Fogarty said.

Mr Iti could be awarded the licence fee for the photo, or look to have the reproduction stopped, or he might seek damages.

Mr Fogarty said if the photographer sold the photo to the magazine for publication, Mr Iti's grievance would be with him, but if the magazine simply picked the image up somewhere, then Mr Iti's case would be with the magazine company.

Mr Iti said he found the image offensive and was seeking legal advice.

The photo was taken a year ago by a German photographer who told him it was for a story on ta moko (Maori tattoos).

"He did not say it was for advertising and I don't like it being used in that form... I am annoyed it was used without consultation," Mr Iti told the Herald.

The advert appears in the August issue of Salisbury Life which, according to the website of its publisher Surf Media "reaches into the most affluent homes in and around Salisbury".

Simon Morgan of advertiser Wessex Fire and Security said the photo came from an advertising agency, which he presumed owned the copyright.

"I hope he (Mr Iti) doesn't think we're stereotyping him as an intruder. That's not the case."

The co-owner of design agency Ripe Ideas in Dorset, Kevin Barrett, said Mr Iti's photo was owned by Getty Images and the company had paid a fee to use it.

- NZPA, HERALD STAFF