Sheldon v Daybrook House - What's The Damage?

The unauthorised use of photographs on the internet and social networking sites is a problem that photographers face on a daily basis. Add to that the concerns that photographers are expressing over the Government's proposals in relation to "orphan works", and the life of a photographer may not appear to be particularly rosy. However, a recent decision of the Patents County Court on the level of damages to be awarded for infringement of the copyright in a photograph may just bring a smile to the faces of the photographic fraternity.

In Sheldon v Daybrook House [2013] EWPCC 26 the court was asked to rule on the amount of damages which could be claimed in relation to the unauthorised use of a photograph of an American popstar by the operator of the "UK's best live venue and club" to advertise its venue and in particular its "Floor Fillers" events. Mr Sheldon, the claimant, had obtained exclusive backstage access to part of the tour by American pop star Ke$ha and, as a result of that access, was able to take photos of both Ke$ha and his support act, LMFAO, in their tour bus lounging together on a sofa with Ke$ha brandishing a bottle of champagne.

Mr Sheldon became aware that the defendant had used the photograph, which it had taken from Tumblr, as part of a poster advertising campaign. Mr Sheldon wrote to the defendant asking it to cease use of his photograph and enclosed an invoice for the use which had been made of his photograph amounting to £1,351.

The defendant took the view that the appropriate fee, assuming there had been infringement, was much less, and offered to pay Mr Sheldon the princely sum of £150.

The judge decided that it would be in the best interests of the parties if the quantum of any claim were assessed before ruling on any other aspects of the claim, since if the quantum were really of the order of a few hundred pounds it would not make sense for the parties to spend any more time or cost on the matter.

Since the claimant was in the business of licensing his photographs the correct measure of any damages was the amount of a reasonable royalty (ie the licence fee which would have been agreed between a willing licensor and a willing licensee having regard to the nature of the right and all the circumstances).

The defendant scoffed at any circumstances in which it or any other company like it would have been prepared to pay more than a few hundred pounds for the use made by it of a photograph like the one taken by the...