Infringement – Photograph
Sheldon v Daybrook House Promotions Ltd: Patents County Court: 8 May 2013
The claimant was a professional photographer and a member of the British Press Photographers Association. He ran a business as a licensor of copyright in photographs. In 2011, the claimant had obtained exclusive access to the tour bus of famous American pop star, 'Ke$ha', who was in the UK on tour. He took a photograph (the photograph) of Ke$ha and the group 'LMFAO' in a backstage party atmosphere, lounging on a sofa, with Ke$ha holding a bottle of champagne. The defendant ran a nightclub and used the photograph in connection with a poster advertising campaign for its events. The claimant brought proceedings alleging infringement of copyright by the defendant's unlicensed use of the photograph.
The defendant contended that, whilst the photograph had been used, it had not appreciated that it was an image which it was not entitled to use. The photograph had been freely available on 'tumblr' social network website and the defendant had a genuinely held the mistaken belief that it could use it. The claimant sought £1,351.00 in compensation for the alleged infringement. He contended that the photograph had been used extensively by the defendant and for an extended period. The defendant's offer to pay the claimant £150 was not accepted. The claimant contended that the claim was worth more than £5,000 and, accordingly, the matter should not be allocated to the small claims track of the Patents County Court (PCC) but should be dealt with in the Patents County Court multi-track procedure. Accordingly, a preliminary issue arose as to the level of damages that would be awarded if the claim succeeded.
The issue for consideration was what damages would be awarded to the claimant assuming, which was not admitted, the acts committed by the defendant in relation to the photograph were indeed acts of infringement of copyright owned by the claimant. The claimant contended that the artists featured in the photograph were award winning and internationally renowned. He submitted that the famous subject matter and the exclusive access to the tour bus were relevant to the sums a photographer in his position would charge to licence such a photograph and would increase the price.
The court ruled: On the debate about the importance of the renown of the artists and exclusivity, the claimant's submissions and evidence were to be preferred. Further, the claimant's evidence on the extent of the use made of the photograph was accepted. While no doubt there were pop stars who were more famous than Ke$ha and LMFAO, both were plainly very well known and current acts. That would tend to increase the value of the photograph to some degree. A factor of even more importance was the exclusivity of access. That was a factor which would enhance its value. In all the circumstances, the correct measure of damages was £5,682.37, exclusive of VAT and interest at the rate of 1% (see , ,  of the judgment) The main preliminary issue would be decided in favour of the claimant (see , ,  of the judgment).
Thomas St Quintin (instructed by Wright Hassall) for the claimant; Browne Jacobson for the defendant.