Monday 27 May 2013

How much is a photograph worth? The UK courts give more guidance

A photograph which hasn't been litigated in the PCC
Photography cases have arguably occupied the revamped Patents County Court (PCC) more than any other type of case.  Recent examples include Temple Island v New English Teas (the red bus case, discussed extensively on this blog here, here and here), Hoffman v D.A.R.E (discussed here), Delves Broughton v House of Harlot (shamefully neglected by this blog…), Celebrity Pictures v B Hannah (discussed here) and now we have another example to add to this illustrious list – Sheldon v Daybrook.

This case is relatively unusual in the world of UK jurisprudence because it is a judgment on a preliminary issue – the quantum of damages. Further, it was a decision made on the papers (i.e. without oral evidence).  These were all sensible case management decisions which avoided the costs spiralling out of control in what should probably have been a small claims track case.

The facts 

Daybrook House Promotions Ltd used Jason Sheldon’s photograph of Ke$ha and LMFAO on its posters, website, facebook pages and flyers to promote a series of events at Rock City (a Nottingham music venue).  Daybrook downloaded the image from Tumblr and, because it was available online, assumed that it was free to use.  Sheldon became aware of some of the use of his photograph and wrote to Daybrook to stop using the image. He also asked for £1,351 based on the use he was aware of at the time.  Daybrook only offered £150 in compensation so Sheldon started a claim via Money Claim Online which was transferred to the PCC.

The case management conference (CMC) identified two issues in the case (1) extent of use of the image by Rock City and (2) the level of a reasonable licence for the image.

Extent of use 

There was very limited disclosure provided by Daybrook so it was difficult for Sheldon to ascertain the extent of use.  The issue of disclosure is a significant problem in the PCC (and even more so in the small claims track). The standard of reasonable or diligent search is arguably lower where the claim is lower value but, more significantly, it is difficult and expensive to show that full disclosure has not been provided.  Whilst search and seizure orders are possible in the PCC (see Suh v Ryu) they are expensive and subject to the costs cap so a large part of the legal costs are unlikely to be recoverable.

Without the benefit of any disclosure documents, Sheldon had to do quite a bit of independent research regarding what the extent of online use and had to estimate the numbers of posters produced based on information elicited in correspondence. The arguments regarding the appropriate level of licence fee can be summarised as follows.

Daybrook, the defendant, argued:

  • Low quotations from other photographers they usually use based on the sort of image in dispute;
  • Only local use around Nottingham; and
  • It wouldn’t have paid more than £100.

Sheldon, the claimant, argued:

  • Famous subjects; 
  • Paid for exclusive access; and
  • Based on the information available, there was extensive use by Daybrook, including online. 

HHJ Birss QC (as he then was) held:

  • The fact Daybrook would not have paid more is not a critical issue.
  • The famous subject matter was important in determining the appropriate licence fee. 
  • The exclusive access was even more critical in increasing the value of the photograph. 
  • The more detailed photography quotation (based on the actual use) was preferable to the defendant’s examples. 

In particular, he noted that it would not be worth obtaining exclusive access if only licence photo for a small amount of money.

Damages were awarded of £5,682.37 plus VAT and interest at 1%.

Sometimes, navigating the law can get a little prickly
The future of photography claims

All of the cases where quantum was decided came in at the current small claims cap (£10,000, for Hoffman v D.A.R.E) or significantly under.  All of these claims would, in theory, have been suitable for the small claims track.  This suggests that the large number of reported claims for infringement of artistic copyright in photographs in the PCC may well decrease as the PCC small claims track for becomes more established.  However, none of the photography cases has been completely straightforward and given the choice between negotiating the legal and procedural complexities of their claim without legal assistance or obtaining legal advice but not being able to recover the costs of that advice, photographers may prefer to use the regular PCC procedure.

Have any of our readers used the PCC, including the small claims track?  Would you consider using it?

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