Respecting the Lens, Part 2: Why “I Didn’t Know I Needed Permission” Is Not a Copyright Defence

Last year, in our article Respecting the Lens: Copyright Infringement and the Rights of Photographers in South Africa, we addressed a common misconception encountered in copyright enforcement matters: because photographs are easy to copy, widely shared and freely accessible online, many businesses assume they can use them without permission. That assumption frequently finds its way into correspondence once infringement is detected. The infringer apologises, says they found the image on Google, Facebook, LinkedIn or another website, and explains that they genuinely did not realise permission was required.

A recent High Court judgment, Mokima Music and Publishing (Pty) Ltd v Black Brain Pictures CC, provides a timely reminder that this type of explanation is not a legal defence. The decision does not involve photographs. It concerns the use of a song as the theme music for a television series. However, the court’s reasoning has direct relevance to the arguments frequently raised in photographic copyright disputes.

The central issue before the court was the interpretation of section 24(2) of the Copyright Act. That provision allows a defendant to avoid a claim for damages if it can prove that, at the time of the infringement, it was not aware and had no reasonable grounds for suspecting that copyright subsisted in the work.

The defendant argued that it believed it had obtained the necessary rights from a third party and therefore did not know that the plaintiff was the true copyright owner. The court rejected the argument. It held that section 24(2) is concerned with whether the defendant knew that copyright existed in the work at all, not whether it correctly understood who owned the copyright. A mistaken belief about ownership is not the same thing as a belief that no copyright exists.

This distinction is important.

Many image infringement cases involve a similar line of reasoning. The user of the image does not usually contend that photographs are not protected by copyright. Instead, the user says something along the following lines:

“The photograph was online.”

“Everybody shares images online.”

“We assumed it was free to use.”

“We didn’t realise we needed permission.”

“We didn’t know the photographer would object.”

None of these explanations amounts to a belief that copyright did not subsist in the photograph. They amount to something very different: a belief that the user could proceed without obtaining permission.

The Mokima judgment makes it clear that this distinction makes a difference. A person who believes they have permission, or who assumes permission is unnecessary, is still acting on the basis that copyright exists. The belief may be mistaken, careless or opportunistic, but it is not ignorance of copyright subsistence.

Indeed, in the modern digital environment it is becoming increasingly difficult for commercial users to argue that they had no reasonable grounds for suspecting that copyright existed in a photograph. Copyright arises automatically in original photographs. Stock photography businesses operate extensive licensing systems. Social media platforms process copyright complaints and takedown notices. Copyright warnings are ubiquitous. Basic information about image licensing is available within seconds of an internet search.

Against that background, a business that downloads an image and incorporates it into advertising, marketing material, a website, a social media campaign or internal communications is unlikely to persuade a court that it had no reasonable grounds for suspecting that copyright existed. The reality is that most businesses know, at least in broad terms, that photographs belong to someone. What they often do not do is take the next step of identifying the copyright owner and obtaining permission.

That is precisely why “everybody does it” is such a weak argument.

The fact that infringement may be widespread does not transform lawful conduct into unlawful conduct, nor does it eliminate copyright. Ease of copying is not the same thing as entitlement to copy. The fact that digital reproduction takes seconds does not diminish the legal rights enjoyed by photographers, nor does it excuse the failure to obtain a licence.

The practical lesson from Mokima is therefore straightforward. Copyright infringement remains a strict liability regime. A defendant who uses a protected work without permission cannot avoid liability simply by saying that they did not appreciate the need for consent, assumed the work was free to use, or believed that others were engaging in similar conduct. Section 24(2) is a narrow exception aimed at cases where a defendant genuinely did not know, and had no reasonable grounds for suspecting, that copyright existed in the work at all. It is not a general “good faith” defence and it is not a refuge for those who choose not to investigate rights that are obvious and readily discoverable.

For photographers, the judgment is welcome confirmation of an important principle: the law protects creative work not only against deliberate copying, but also against the increasingly common assumption that content found online is free for the taking. As technology continues to make copying easier than ever, respecting the lens remains just as important as respecting any other form of property. The convenience of copying has never been a substitute for permission.