A Dublin photographic agency yesterday secured leave from the High Court to seek an order next Friday withdrawing from sale copies of a new book by the journalist Sam Smyth, Thanks a Mil- lion Big Fella. The permission was granted to Photocall Picture Agency Ltd, Lower Ormond Quay, Dublin, after the court was told that the agency owned copyright of the photograph used on the cover of the book - published by Blackwater Press - which went on sale recently.
The agency claimed that its original photograph featured the former Taoiseach Mr Charles Haughey shaking hands with the businessman Mr Ben Dunne and that this photograph had been used and altered without its permission.
It was claimed that the photograph on the cover of Mr Smyth's book was a faked version of the original. The agency claimed that the fake was effected by "digital image manipulation" of certain figures out of the original photograph and by superimposing the face of the former minister Mr Michael Lowry upon that of an unknown bystander and by changing the background.
Mr Rex Mackey SC, for the agency, said the former Russian leader Josef Stalin had airbrushed Leon Trotsky out of all photographs but he was not aware of Stalin having intruded a figure into a photograph in a manner similar to that achieved by Blackwater Press.
He sought an interim injunction against Folens Publishing Company, trading as Blackwater Press, requiring it to withdraw from sale all unsold copies of Mr Smyth's book.
He said he would not seek a similar order against Independent Newspapers plc over the reproduction of the book's cover photograph on the front cover of the November 29th edition of the Irish Independent's Weekend magazine because the company, through a solicitor's letter, had said it did not intend to publish the photograph again.
Mr Mackey said it was anticipated that the book might sell up to 70,000 copies and he wanted it withdrawn from sale now. He said it was unnecessary to emphasise to the court the selling value of the book's cover photograph and he claimed Blackwater Press was "disseminating a fraud on the public".
Mr Justice Kelly said he would not grant the interim injunction as the photograph on the book's cover had been reproduced in Weekend on November 29th last and the matter had been in the public domain for up to two weeks.
Having regard to the lapse of time since November 29th, he did not think a degree of urgency had been exhibited which would call for the making of an interim order in the absence of the defendants and without their having had an opportunity to be heard. But he would allow the agency to apply to the court on Friday for an interlocutory injunction to withdraw the book from sale.
He also gave permission to Photocall to seek an order restraining Folens Publishing Co, trading as Blackwater Press, from infringing copyright in respect of the photograph.
In an affidavit, Mr Eamonn Farrell, a director of Photocall Picture Agency, said the company owned the copyright in an artistic and historical work consisting of a photograph taken in 1986 of the former Taoiseach Mr Charles Haughey shaking hands with the businessman Mr Ben Dunne junior.
He said the photograph had been a source of income for his company in the recent past and had been circulated throughout the country on a licensed basis many times prior to, and following, its publication in The Irish Times on July 10th last.
He said he had been contacted by telephone on December 3rd last by Mr John O'Connor of Folens Publishing Company to discuss the breach of copyright in the photograph. He said Mr O'Connor accepted Photocall owned copyright of the photograph and had claimed there had been a misunderstanding in relation to agreeing a fee for use of the photograph on the cover of the book.
