A very common query VIP receives is regarding damages for copyright infringement in photographs. HHJ Birss QC opined in the case of Hoffman v Drug Abuse Resistance Education (UK) Ltd  EWPCC 2 that the appropriate sum of damages is “the sum which a willing photographer in Mr Hoffman’s [the Claimant] position and a willing user in the defendant’s position would have agreed upon as a charge for using the photographs” (luckily for you lot I have previously written a short article on this very case: No Innocent Infringer).
However this is a very subjective test and as such it is always useful to read other examples of calculation of an appropriate sum of damages. The case of Sheldon v Daybrook House Promotions Ltd  EWPCC (you can access the judgment here) provides a very useful demonstration of the factors that will be considered in determining the appropriate ‘charge’ for a photograph.
This case involved the unauthorised use of a photograph of a ‘celebrity’ called Ke$ha (and no VIP hasn’t got a clue who she is either), the photograph was taken backstage during Ke$ha’s UK tour back in 2011. The claimant in this case was the photographer, and thus author, of that photo, the defendant runs a night club/venue in Nottingham called Rock City (HHJ Birss QC describes it as a “dance venue” which I don’t think is quite accurate but then I’m just a pedant). Daybrook used, without permission, the photograph on 200 posters, 10,000 fliers, online advertising and on its Facebook page.
There appears to be no argument as to liability, it is simply quantum that is disputed. HHJ Birss QC recognised this and thus this preliminary decision in the hope that it would encourage the parties to go away and settle the matter.
Daybrook’s position is that it would expect to pay only around £150 (and certainly no more than a few hundred pounds) for use of such a photo in this manner, this was justified by evidence of a quote from another photographer, using professional software called fotoQuote, of £366 as well as evidence of two further quotes of £100 and £75 respectively. Daybrook further explained that it’s use of the photo was only at a local level and the posters and flyers would have cost only £200-£300 and that they would have paid only to cover such use.
Sheldon on the otherhand claimed that the artists in the photo are award winning and internationally recognised and that the exclusive access that he had to their tour bus was relevant in assessing the proper value of the resulting photos. Furthermore Sheldon was able to show evidence that Daybrook used the photo to a greater extent than they had admitted. Sheldon provided two cost estimates for the photo, these were £14,667.05 (for regional or national advertising) and £5,682.37 (for the specific advertising carried out by Daybrook). These quotes were again calculated using fotoQuote as well as by providing details of quotes from the likes of Getty Images, Retna and Rex Features.
Birss effectively ignored the fact that Daybrook would not have expected to pay more than a few hundred pounds for a photograph, instead focussing on the actual photograph that Daybrook did use and the reasonable royalty that would be associated with that particular image. Looking at the conflicting estimates Birss preferred those of Sheldon, opining that weight must be given to the extent of the actual use of the photograph as well as outside sources such as Getty etc.
However Birss opted to use the lower of the two quotes put forward by Sheldon on the basis that the higher quote of £14,667.05 took no account of the actual use made of the photograph, rather a hypothetical regional or national use of the same. Instead Birss preferred the sum of £5,682.37 and awarded interest at the rate of 1% on this (but did not explain why, other than that the 4% sought by Sheldon was too high).
In summary I would pull out the following bullet points for assessing a ‘reasonable royalty’ and thus an appropriate rate of damages:
- Who/what the photograph is of (if it is a celebrity then the value will be greater).
- Who the photographer is (a photographer with a worldwide reputation will attract a premium over a straight out of University photography student).
- The circumstance of the photograph (if the photograph was taken backstage or in an otherwise restricted situation then again it will attract a premium).
- The actual use made of the photograph.
- Quotes from the industry (including evidence from the likes of Getty as well as other photographers of a similar standing).
Whilst this case is by no means ground-breaking it does give a useful reminder of the points that need to be considered when calculating an appropriate ‘reasonable royalty’ and thus damages.