Copyright Photographs : Sheldon v Daybrook House Promotions Limited
In Sheldon v Daybrook House Promotions Limited the Claimant Mr Sheldon was a professional photographer and a member of the British Press Photographer’s Association. During 2011, the American pop star Ke$ha had a UK tour. Guests on the tour were LMFAO. They appeared on tour in Birmingham and the Claimant obtained exclusive access to Ke$ha’s tour bus and took photographs of both Ke$sha and LMFAO.
The particular photograph, which was the subject of these proceedings, was one which showed three individuals in a backstage party atmosphere lounging on a sofa with Ke$sha brandishing a bottle of champagne.
The Defendant ran a dance venue in Nottingham called Rock City.
In March 2011 the Claimant discovered that the Defendant had been using the photograph in connection with a poster advertising campaign for one of their events. The Claimant considered the use of the photograph was unlicensed and asked the Defendant to stop its use and sent an invoice for £1,351.
The reason for that amount was that Mr Sheldon valued that as being the price that would have been paid at that time having regard to the use of the photograph. The Defendant did not appreciate that they were not entitled to use it.
The image had been available on the Tumblr social network site. Because of that the Defendant thought it was freely available and that they were entitled to use it. They were not.
Daybrook valued the claim extremely low and offered the sum of £150.
Mr Sheldon issued his own proceedings. The case was transferred from the Northampton County Court to the Patents County Court. By which time Mr Sheldon considered that the photograph had been used much more extensively than at first thought. The Claimant sought permission to amend the statement of case to include this claim.
The value of the photograph was important. At that time the small claims limit was £5,000. If it was less than that it would be allocated to the small claims track. If it was above that then it would be dealt with in the fast track of the Patents County Court.
Directions were given at the CMC as to written statements and written submissions on the question of quantum. The Claimant produced a range of figures from £2,450 to £14,667.05. He’d obtained his figures from Fotoquote Software and also quantum obtained from Getty Images, Retna and Rex Features.
The Judge stated that:
“The issue is not what sum Daybrook have been prepared to pay for any photograph they intended to use in this promotional campaign. The question is focused on the actual photograph Daybrook used.”
A reasonable royalty should be assessed against the particular work. The question will be asked, what would the Claimant have earned for the reproduction of this photograph by someone wishing to reproduce it?
Daybrook contended that a reasonable royalty would only be a few hundred pounds. They produced the evidence of Ms Tippins who stated that Daybrook would only be prepared to pay a few hundred pounds to any other company.
The Judge accepted Ms Tippins evidence. However, whilst it was a relevant consideration, it wasn’t a critical issue.
The Judge preferred Mr Sheldon’s evidence on the grounds that it was much more detailed and he had other corroborative sources in support. He also didn’t accept that a photographer would bother going to the trouble of taking such a photograph if after such work he would only obtain £300.
The Judge found the correct measure damages was £5,682.37, inclusive of VAT and interest.
So the measure of damages will be based on the reproduction which has taken place and the extent of the use made of the photograph will be considered by the court alongside factors such as how well known the artists were and the exclusivity of access.