Are you a photographer?

I am often asked how a court should address a photographer’s right to damages when he has established copyright infringement.

Well some guidance was provided by Judge Birss QC and the excellent Patents County Court.

The claimant Mr Sheldon is a professional photographer. The case concerned a photograph used without Mr Sheldon’s permission.  The defendant (Daybrook) ran a dance venue in Nottingham called Rock City.

Sheldon found that Daybrook used a photograph on a poster advertising campaign for its “Floor Fillers” events which were due to be launched at Rock City.

Mr Sheldon was miffed and asked Daybrook to stop and sent it an invoice for the use, totalling £1,351.00. The sum was based on Mr Sheldon’s then understanding of the extent of the use of the photograph at that time. Sending the invoice reflects the fact that Mr Sheldon’s business involves the licensing of the use of his photographs. Daybrook offered £150.

Mr Sheldon sued on line. The case ended up in the PCC. Key question what a reasonable licence fee would be for the use?

Judge Birss QC found in favour of the Claimant of course and after considering various witness statements said as follows

“The measure of damages should be based on the actual reproduction which took place. That means the most relevant elements of Mr Sheldon’s evidence are the bespoke quotations. These produce a range of numbers from about £4,000 to £6,000. Mr Sheldon’s own figure comes to £5,682.37. That includes the mark up as a result of the subject matter of the image, a point I have accepted. I find that the correct measure of damages in this case would be £5,682.37. That sum is exclusive of VAT and interest. On the matter of interest, a rate of 4% was sought by Mr Sheldon. That is too much. I will award interest at the rate of 1%.


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