In a case which demonstrates the potential pitfalls of using photographs posted on social networking websites (Tumblr in this case), the Patents County Court (PCC) has given a preliminary ruling on what constitutes a reasonable royalty for copyright infringement involving the unauthorised use of a celebrity photograph.
The claimant (Jason Sheldon, a professional photographer) obtained exclusive back stage access to the Birmingham leg of American pop star Ke$ha’s UK tour in 2011. Mr Sheldon took a number of photographs of Ke$ha and supporting act LMFAO, including one of the three celebrities lounging on a sofa with Ke$ha brandishing a bottle of champagne.
In March 2012 Mr Sheldon found that the defendant (Daybrook House Promotions Ltd, a promoter for the Nottingham dance venue Rock City) was using the photograph without a licence as part of an advertising campaign for its “Floor Fillers” events. Mr Sheldon, whose business involves the licensing of the use of his photographs, asked the defendant to stop and sent it an invoice for the use.
In his decision Judge Birss QC stressed that the root of the difficulty in this case arose from the “very different view the parties took as to what a fair licence fee would have been for the acts complained of.” The question for the court was what damages would be awarded to Mr Sheldon assuming, which was not admitted, that the acts committed by the defendant were acts of copyright infringement.
The correct measure of damages in such cases is a reasonable royalty, ie the licence fee which would have been agreed between a willing licensor and a willing licensee. Daybrook asserted that this reasonable royalty figure would have been “a few hundred pounds”. Mr Sheldon produced a range of figures between £2,450 and £14,667.05. His figures were derived from fotoQuote software and also quotes from Getty Images, Retna and Rex Features.
The judge explained that “the issue is not what sum would Daybrook have been prepared to pay for any photograph they intended to use in this promotional campaign. The question is focussed on the actual photograph Daybrook used.” A reasonable royalty should be assessed against the particular copyright work in question. What would Mr Sheldon have earned for the reproduction of his photograph by someone wishing to reproduce it?
The measure of damages will be based on the reproduction which has taken place. The extent of the use made of the photograph will be considered alongside other factors including the renown of the artist and exclusivity of access. The judge doubted whether a photographer would go to the trouble of arranging access to a location only to license the resulting photographs in this way for a few hundred pounds.
The judge found that the correct measure of damages was £5,682.37 exc. VAT and interest, a figure generated by Mr Sheldon’s fotoQuote software with a 20% mark up to reflect the specific subject matter and characteristics of the image.
Swan Turton LLP
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