Sunday, 5 February 2012

He who D.A.R.E.’s infringe copyright fails… but what’s the damage?

Pictures of drugs can cost a lot of money...
so how much is a picture of drugs and money worth?
Courtesy of Images_of_money on Flickr
There have been a number of recent cases in the Patents County Court for England and Wales which have affected the world of art. The “red bus” decision has attracted the most attention but another case, Hoffman v D.A.R.E, regarding the application of the “innocent infringer” defence and calculation of damages awards for infringement of photographs is, perhaps, of greater practical significance for photography professionals and artists generally.

This was a case where the finding of infringement was relatively straightforward. 19 of Mr Hoffman’s photographs had been used on the defendant’s websites, D.A.R.E did not have Mr Hoffman’s permission to use the images. However, it mistakenly believed that it had a right to use the photographs because they appeared on a Department of Health website and consequently were assumed to be covered by Crown copyright.

The innocent infringer

D.A.R.E claimed that it had not paid Mr Hoffman because it “had not intentionally or knowingly infringed his copyright”. However, the fact that D.A.R.E thought that it had permission is not a defence under section 16 of the Copyright Designs and Patents Act. [Section 16 sets out the various acts that constitute copyright infringement]. By hosting the images on the various websites, D.A.R.E was found to have communicated the works to the public (section 16 (1)(d) as set out in more depth in section 20(2)(b)).

D.A.R.E then sought to rely on section 97 which appears to offer a defence to infringers who are “innocent” of the infringement. As the judgment points out, this is not strictly speaking a defence but rather a bar to damages.

Although D.A.R.E understood that it had the right to use the images, this was not sufficient to rely on the innocent infringer test. As the judgment explains:

“None of this [belief that D.A.R.E had the right to use the images] amounts to a defence under s.97. [D.A.R.E.] understood it had permission under what it understood to be the relevant copyright. This is a very different thing from an argument that the defendant had no reason to believe copyright subsisted at all…. To believe that one had permission under (in this case) Crown copyright is the opposite of a belief … that there is no copyright in existence.” (my emphasis).

This places the requirement for satisfying the innocent infringer test as extremely high and it is hard to think of many occasions where it can be relied upon. Given the low threshold for artistic works, reliance on this defence is likely to only apply where a work is so old that it is reasonable to assume that it has fallen into the public domain.

What’s the damage?

Mr Hoffman assessed his damage as £250 per photograph per year (i.e. £19,000 over the four years that the photographs were on the websites). He also claimed an additional 50% uplift for the use of thumbnails on the websites. This was not the correct approach. Rather “the right sum by way of damages is the sum which a willing photographer in Mr Hoffman’s position and a willing user in D.A.R.E’s position would have agreed upon”.

In reaching the assessment of damage, the judge made the following observations:

“the parties would have agreed a single fee to use an image, having regard to the period of use. I do not doubt the fee would have been larger for a longer period of use but it would not” be the same amount for every year of use.

“it seems to me unlikely that a further fee … would be agreed for thumbnails of the very same image.”

He ultimately reached a figure of £10,000 in damages with interest calculated at 4% (i.e. 1% above the average base rate for the period).

Whilst the exact basis for this sum is unclear, the factors which went into the decision making process are set out above. Finally, it is worth remembering that D.A.R.E was a UK charity [it is now insolvent], this may have influenced the amount awarded.

Are you a photographer? How much would you charge for the use of 19 photographs on two websites? Would that amount change if you were negotiating with a charity? Any other insights into the quantum of copyright are, as always, greatly appreciated.


TOM ANG said...

If the judge calculated quantum from what he considered might have been agreed between photographer and client, does it mean that the sum he arrived at is thereby set a standard for a reasonable fee for similar transactions?

The figure seems high and one unlikely to have been agreed to by a small charity. But I think it's fair to take it that DARE used as many pictures as it did for as long as it did only because it thought it could do so for free. If DARE had had to pay, it's likely they would have used fewer images for a shorter time. So it's misleading to refer to what a 'willing user in DARE's position would have agreed upon'. The quantum (rightly, IMO) reflects what DARE used when it thought it was in a position to use the images freely rather than what DARE would have agreed on if it knew it had to pay for rights.

From the awarded sum, the cost per image per annum per site comes out to about £66. That the kind of sum that I, as a photographer, would agree to. But if it was to a charity I'd personally support I may charge less or not charge at all. If it was a charity I did not care for, I'd charge them like any other commercial client. I guess, in David Hoffman's case DARE fell in the latter category; hence his large (but not commercially unreasonable) claim. If so, the quantum is aruably calculated too low.

Andy J said...

I don't do much commercial work these days so I'm pretty out of touch with current rates. Thus I would always check the NUJ suggested rates as a starting point and then modify them up or down much as Tom Ang mentioned.