A High Court judge yesterday refused to make an order withdrawing from sale a book described as Ireland's current No 1 best seller, Thanks A Million Big Fella, by Sam Smith.
Photocall Picture Agency Ltd, of Lower Ormond Quay, Dublin, had applied for an interlocutory injunction against the publisher of the book, Folens Publishing Company.
The agency claimed it owned the copyright of a photograph on the cover of the book which featured the businessman, Mr Ben Dunne, shaking hands with the former Taoiseach, Mr Charles Haughey.
In court yesterday Mr Michael McDowell SC, for Folens, claimed Photocall was trying to have the current No 1 best-selling book in Ireland withdrawn from sale.
Ruling on the application, Mr Justice Kelly said the photograph was known as the "handshake photograph". It had apparently been taken in 1986 and showed Mr Haughey and Mr Dunne shaking hands outside the Pro Cathedral in Dublin.
It was clear, as events had unfolded this year following the findings of the McCracken tribunal, that the photograph had taken on an interest and significance which it formerly might not have had, the judge said.
The judge said Photocall contended the photograph had not merely been used by Folens but had been abused. It was alleged that the head of an unnamed person standing between Mr Haughey and Mr Dunne had been removed from the original photograph and that the head of a former government minister, Mr Michael Lowry, had been transposed on to that person's body.
Mr Justice Kelly said the background had moved from the Pro Cathedral to what appeared to be Dublin Castle.
Photocall had contended that this amounted to a very serious infringement of its copyright. The agency had said no agreement had been reached for the use of the original photograph, but that was denied by Folens.
Mr Justice Kelly said there was no doubt the book was successful. Folens had claimed it had done no legal wrong and that it had obtained a licence from the agency which permitted it not merely to use the photograph in its original form but also to make alterations.
The judge said Folens had drawn attention to the fact that Photocall had not complained when original photographs were used on other occasions and when alterations were made.
Mr Justice Kelly said there was a serious issue to be tried in the matter. However, in his view damages would be an adequate remedy and he would not grant an injunction withdrawing the book from sale.
The judge directed Folens to keep accounts of sales and profits of the book. and that Photocall's lawyers should receive within seven days the figures for past sales. Thereafter, the figures should be supplied on a monthly basis.