UK: Sheldon v Daybrook House - What's The Damage?

Last Updated: 10 June 2013
Article by Adrian Heath-Saunders

The unauthorised use of photographs on the internet and social networking sites is a problem that photographers face on a daily basis. Add to that the concerns that photographers are expressing over the Government's proposals in relation to "orphan works", and the life of a photographer may not appear to be particularly rosy. However, a recent decision of the Patents County Court on the level of damages to be awarded for infringement of the copyright in a photograph may just bring a smile to the faces of the photographic fraternity.

In Sheldon v Daybrook House [2013] EWPCC 26 the court was asked to rule on the amount of damages which could be claimed in relation to the unauthorised use of a photograph of an American popstar by the operator of the "UK's best live venue and club" to advertise its venue and in particular its "Floor Fillers" events. Mr Sheldon, the claimant, had obtained exclusive backstage access to part of the tour by American pop star Ke$ha and, as a result of that access, was able to take photos of both Ke$ha and his support act, LMFAO, in their tour bus lounging together on a sofa with Ke$ha brandishing a bottle of champagne.

Mr Sheldon became aware that the defendant had used the photograph, which it had taken from Tumblr, as part of a poster advertising campaign. Mr Sheldon wrote to the defendant asking it to cease use of his photograph and enclosed an invoice for the use which had been made of his photograph amounting to £1,351.

The defendant took the view that the appropriate fee, assuming there had been infringement, was much less, and offered to pay Mr Sheldon the princely sum of £150.

The judge decided that it would be in the best interests of the parties if the quantum of any claim were assessed before ruling on any other aspects of the claim, since if the quantum were really of the order of a few hundred pounds it would not make sense for the parties to spend any more time or cost on the matter.

Since the claimant was in the business of licensing his photographs the correct measure of any damages was the amount of a reasonable royalty (ie the licence fee which would have been agreed between a willing licensor and a willing licensee having regard to the nature of the right and all the circumstances).

The defendant scoffed at any circumstances in which it or any other company like it would have been prepared to pay more than a few hundred pounds for the use made by it of a photograph like the one taken by the claimant. But that was not really the critical issue. The crux of the matter was what a willing licensee would have paid for the use of the particular photograph which the claimant had taken. In other words, what would this copyright owner have earned for the reproduction of this photographic work by someone wishing to reproduce it?

The judge highlighted the importance of assessing the reasonable royalty against the background that this was a photograph of some very well-known pop stars and this would tend to increase the value of the photograph to some degree. But a factor of even more importance was the exclusivity of access and the fact that this access enabled Mr Sheldon to obtain a photograph of particular interest.

The parties to the dispute had adduced evidence of what they regarded as appropriate royalty payments, some of which were derived from the use of certain "fotoQuote" software. However many of these quotes were not particularly helpful since they were not based on the actual amounts of usage which took place but rather had been prepared on the basis of a licence for national or regional advertising.

One quotation that had been prepared by the claimant was regarded as being of help – this was a bespoke quote, again prepared using "fotoQuote" software, but this time based on the extent of the usage which had been established. This produced a range of quotes from third party agencies ranging from £4,030 to £6,160. The claimant's own suggested quote on this basis (including a mark-up of 20% for the specific subject matter and characteristics of the image) came in at £5,682. The judge took the view that this was the correct measure of damages.

That award is close to forty times the amount that the defendant initially offered and is clearly a victory for the claimant. It should come as a warning to those businesses who happily adopt an "infringe now, pay later" mantra that the amounts that might be awarded by the courts may well dwarf the fees that they would in fact be prepared to pay.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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