Picture, courtesy Success Photography
Tempest Photography – employing 450 photographers nationwide – was sued by rival Success Photography which won £1,880 in damages at the Intellectual Property Enterprise Court, part of the High Court, on 21 November 2013.
Framing Success Limited, trading as Success Photography, accused H Tempest Limited of passing off a picture as its own, at a Liverpool trade fair in November 2012.
The DofE is a charity that aims to give people aged 14-24 a chance to develop skills for life and work.
The photo in question (pictured above) is a group portrait of DofE Gold Award winners, captured by Success Photography at St James’s Palace earlier in 2012.
There is no suggestion that the DofE itself committed any copyright infringement.
At the time of the alleged infringement, Tempest, an 80-year-old business based in St Ives, Cornwall, learned it had won the DofE photo contract from Success Photography whose own contract with (DofE) ended towards the end of 2012.
In November 2013, the High Court heard that Tempest Photography had been using the photo for a year, without permission.
Success Photography demanded that Tempest pay a licence fee in damages – £1,500 plus VAT.
Speaking about the case for the first time, Steve Solomons, a director at Success Photography, which is based in Banbury, Oxfordshire said: ‘We weren’t only going for costs. We wanted to point out the moral issue of this case… In this industry you have to protect copyright.’
In a transcript of the ruling, seen by Amateur Photographer, District Judge Clarke said it appeared that there was a breach of Success Photography’s ‘moral rights’ as well as copyright.
The judge added: ‘The defendant does not dispute that the photograph was taken by the claimant and that copyright in that photograph remains in the claimant.
‘Despite that, the defendant has used the photograph on its own advertising boards, without the claimant’s permission, to advertise the fact that it has now won the contract to take photographs in St James’s Palace of Duke of Edinburgh Award winners, displacing the claimant as photographers at such events. This is the breach of copyright complained of by the claimant…
‘It [Tempest] is the largest player in the UK schools photographs business… It is in the copyright business… It is clear to me that the defendant, better than many, knows the value of copyright… It should know better, frankly, than to use a competitor’s photograph on its advertising materials and pass it off as their own.’
Tempest Photography had yet to respond to AP’s request for comment at the time of writing.
Tempest Photography’s contract with the DofE is understood to predate the copyright ruling by more than 10 months.
The DofE continues to list Tempest Photography as the official supplier of photos captured at St James’s Palace.
The DofE declined to comment when approached by Amateur Photographer.
‘David v Goliath’ battle
Solomons explained that the image was spotted at a trade show that was attached to the Girls’ Schools Association annual conference at the Hilton Hotel, Liverpool, where Tempest Photography was exhibiting. The event opened on 19 November 2012.
Solomons, and Success Photography’s client liaison manager Liz Minns, say they want to highlight their plight to the rest of the industry.
They describe the case as a ‘David v Goliath’ battle – a reference to Success Photography’s managing director ‘David’ Wallbanks.
Nigel McNaught, director of the Photo Marketing Association UK – of which both firms are members – spoke of the wider copyright issue: ‘One of the big advantages of digital photography is the easy transmission of images between users.
‘But, it’s a two-edged sword – when images are transmitted several times, often in haste, and then printed – the ownership of the copyright might become lost or at best unclear.’
The photo also appeared on the DofE website.
The DofE said it was entitled to use the image as part of its contract with Success Photography.
The DofE told Success Photography, via email on 20 December 2012, that it displayed its photo of the Gold Award presentation because Tempest would not have its own group shot ready until the following month.
Tempest had sought to settle the claim with the Success Photography on 19 November 2013, but the judge refused to award Tempest costs for attending the High Court hearing because it had made the offer less than 48 hours before it was due to take place.
Success Photography pursued its case through the small claims process, before damages were assessed at the High Court in London.
Success Photography had accused Tempest Photography of using the image (bottom, right) to highlight the latter’s new role as official photographers for the Duke of Edinburgh’s Award [
Picture, courtesy Success Photography]