How much is a photograph worth?
Photography cases have occupied a lot of the early years of the revamped IP Enterprise Court (or IPEC) more than any other type of case. For example, Temple Island v New English Teas (the red bus case), Hoffman v D.A.R.E, Delves Broughton v House of Harlot, Celebrity Pictures v B Hannah.
One photography focused case which is of particular interest in the context of damages is Sheldon v Daybrook  EWPCC 26.
This case is relatively unusual by English court standards because it is a judgment on a preliminary issue – the quantum of damages. Further, it was a decision made on the papers (i.e. without oral evidence). These were all sensible case management decisions which avoided the costs spiralling out of control in what should probably have been a small claims track case. It's an excellent example of the IP Enterprise Court working for everyone.
Daybrook House Promotions Ltd used Jason Sheldon’s photograph of Ke$ha and LMFAO on its posters, website, facebook pages and flyers to promote a series of events at Rock City (a Nottingham music venue). Daybrook downloaded the image from Tumblr and, because it was available online, assumed that it was free to use. (This is a common misconception.)
Sheldon became aware of some of the use of his photograph and wrote to Daybrook to stop using the image. He also asked for £1,351 based on the use he was aware of at the time. Daybrook only offered £150 in compensation so Sheldon started a claim via Money Claim Online which was transferred to the IPEC.
The case management conference (CMC) identified two issues in the case (1) extent of use of the image by Rock City and (2) the level of a reasonable licence for the image.
Extent of use
There was very limited disclosure provided by Daybrook so it was difficult for Sheldon to ascertain the extent of use. The issue of disclosure is a significant problem in the IPEC (and even more so in the small claims track). The standard of reasonable or diligent search is arguably lower where the claim is lower value but, more significantly, it is difficult and expensive to show that full disclosure has not been provided.
Whilst search and seizure orders are possible in IPEC (see Suh v Ryu) they are expensive and subject to the costs cap so a large part of the legal costs are unlikely to be recoverable.
Without the benefit of any disclosure documents, Sheldon had to do quite a bit of independent research regarding what the extent of online use and had to estimate the numbers of posters produced based on information elicited in correspondence. The arguments regarding the appropriate level of licence fee can be summarised as follows.
Argument in favour of a low licence fee:
The Defendant had obtained low quotations from other photographers.
The photograph was only used locally around Nottingham.
The Defendant wouldn’t have paid more than £100.
Arguments in favour of a high fee:
The subjects of the photograph were famous
The photographer paid for exclusive access.
There was extensive use by Daybrook, including online.
The judge balanced these competing arguments and ultimately concluded that it was the subject matter and the exclusive access that the photographer had obtained (not the amount Daybrook was willing to pay) which was determinative.
In particular, Birss J noted that it would not be worth obtaining exclusive access if only licence photo for a small amount of money.
Damages were awarded of £5,682.37 plus VAT and interest at 1%.
The future of photography claims
All of the cases where quantum was decided came in either at or under the small claims cap of £10,000 (Hoffman v D.A.R.E). All of these claims would, in theory, have been suitable for the small claims track.
As predicted at the time, the number of reported claims for infringement of artistic copyright in photographs declined as the IPEC small claims track became more established.
To find out more about the issues raised in this article contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - firstname.lastname@example.org
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