The Patents County Court has told photographer Jason Sheldon he can claim more than £5,500 in damages over a celebrity photo published without his consent, despite the image having already appeared on a social networking website.
In a preliminary ruling, the judge said Sheldon is entitled to claim £5,682 after a promotions company published his exclusive photo of US pop star Ke$sha as part of a poster-based advertising campaign for events to be held at a Nottingham nightclub.
Daybrook House Promotions Ltd wrongly believed that it was free to use the photo as it had already been published on Tumblr, a social networking website.
The photo – captured in Birmingham on 3 July 2011 after Sheldon obtained exclusive backstage concert access – shows the singer lounging on a tour bus sofa brandishing a bottle of champagne with members of rap duo LMFAO.
Sheldon said he had not licensed Daybrook’s use of the photo and sent the firm an invoice for £1,351 after it used the image last year.
However, the firm offered the photographer a fee of just £150, which he rejected.
Since lodging his original claim the photographer believed his image had been used more extensively ‘as part of a collage of images’.
Not free to use
Daybrook said it would not have used the photo had it realised it was not free to use.
The case is noteworthy because it shows that the photographer was entitled to more than the ‘few hundred pounds’ he was offered, according to media law firm Swan Turton.
It ‘demonstrates the potential pitfalls of using photographs posted on social networking websites’, added Swan Turton in an emailed bulletin last week.
As well as serving as a warning to those grabbing photos from the web for their own use, it also highlights the risks photographers face when posting online.
Lawyer Charles Swan told Amateur Photographer he believes there is ‘massive ignorance out there and people often think that images posted online are free to use’.
The ruling shows ‘what constitutes a reasonable royalty for copyright infringement involving the unauthorised use of a celebrity photograph’.
Swan Turton adds: ‘In his decision Judge Birss QC stressed that the root of the difficulty in this case arose from the “very different view the parties took as to what a fair licence fee would have been for the acts complained of”.
‘The question for the court was what damages would be awarded to Mr Sheldon assuming, which was not admitted, that the acts committed by the defendant were acts of copyright infringement.’
In focusing on what constituted a reasonable royalty, the judge took into consideration factors that ‘enhance’ the value of the photo, such as the renown of the artist and the photographer’s ‘exclusivity of access’.
The judge accepted Sheldon’s figure of £5,682.37 (excluding VAT and interest) which the photographer had obtained via a range of quotes.
The amount includes a 20% mark up in light of the subject matter.
The case did not focus on whether Daybrook breached copyright and the court has not ruled on this aspect.
In the 8 May ruling, details of which have been published HERE, the judge said he hopes the parties will negotiate with each other to bring the case to a close.
The case comes just months after a High Court judge banned the Sun newspaper from publishing potentially embarrassing photographs of Kate Winslet’s husband, Edward RocknRoll, in a ruling involving Facebook.