Jason Sheldon v Daybrook House Promotions Ltd
| Jurisdiction | England & Wales |
| Judge | Judge Birss |
| Judgment Date | 08 May 2013 |
| Neutral Citation | [2013] EWPCC 26 |
| Court | Patents County Court |
| Docket Number | Case No: CC12P2492 |
| Date | 08 May 2013 |
[2013] EWPCC 26
IN THE PATENTS COUNTY COURT
Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
His Honour Judge Birss QC
Case No: CC12P2492
Thomas St Quintin (instructed by Wright Hassall) for the Claimant
Browne Jacobson for the Defendant
On paper
The claimant (Mr Sheldon) is a professional photographer. He is a member of the British Press Photographers Association and a National Press Card holder. His clients include the NEC Group, EMI, Virgin Records and Birmingham Symphony Hall.
An internationally famous American pop star called Ke$ha had a UK tour in 2011. Special guests on the tour were another international famous pop duo called LMFAO. On 3 rd July 2011 the tour came to Birmingham. Mr Sheldon obtained exclusive access to Ke$ha's tour bus and took some photographs of Ke$ha and LMFAO. This case is about one of those photographs. The image shows the three individuals in a back stage party atmosphere, lounging together on a sofa with Ke$ha brandishing a bottle of champagne.
The defendant (Daybrook) runs a dance venue in Nottingham called Rock City. It is marketed as "the UK's best live venue and club".
In March 2012 Mr Sheldon found that Daybrook was using the photograph in connection with a poster advertising campaign for the defendant's "Floor Fillers" events which were due to be launched on 30 th March at Rock City.
As far as Mr Sheldon was concerned the use of the photograph by the defendant was unlicensed. He asked Daybrook to stop and sent the defendant 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's position was and always has been that it accepts the photograph has been used but that it did not appreciate that this was an image which it was not entitled to use. Ms Tippins, the operations manager of Daybrook, explains that the photograph was freely available on the tumblr social network website. Ms Tippins explains that Daybrook had a genuinely held mistaken belief that this meant the photograph had been posted onto the site to be freely used. She also explains that irrespective of the legal merits of that position, had Daybrook realised this was not the intention of the claimant (or indeed that the claimant was perhaps unaware that his photograph had been so posted) it would not have made use of the photograph. Ms Tippins explains that Daybrook regularly pays for photographs and engages a variety of photographers to assist it with promoting its events and activities.
However as far as Daybrook is concerned the value of this claim is low. The proper fee to be paid for the use of the photograph in this case should be measured in a few hundreds of pounds. In response to the invoice Daybrook offered £150.
Mr Sheldon started proceedings to recover the money he felt he was owed. The case began using the money claim online procedure and was therefore issued in Northampton County Court. It was transferred to the Patents County Court and a case management conference took place on 10 th December 2012. Both sides appeared by junior counsel and had instructed solicitors. By now Mr Sheldon believed that the photograph had been used more extensively and as part of a collage of images and that use had continued after the initial complaint. While Daybrook accepted that the image had been used, it did not accept that infringement had necessarily taken place either at all or in relation to the collage. Mr Sheldon had not sought additional damages for copyright infringement in his original claim form but sought permission to amend his statement of case to include such a claim.
At the CMC it became clear that the root of the difficulty in this case was the very different view the parties took as to what a fair licence fee would have been for the acts complained of. This involved two issues: the extent of the use of the photograph by Daybrook; and, of more significance given how far apart the parties were, what a reasonable licence fee would be for the use.
If, as Daybrook contended, the claim was worth only £150 or thereabouts then it was manifestly disproportionate to spend any time or cost on the matter at all. Apart from anything else if that was what the claim was worth then no doubt Daybrook would not incur any time or cost debating infringement itself. If the proper sum was less than £5,000 then, based on the limits applicable at that time, the case should be allocated to the Patents County Court small claims track, where it could be dealt with in a proportionate way. However if, as Mr Sheldon now contended, the claim was worth more than £5,000 then the matter should not be allocated to the small claims track and should be dealt with in the Patents County Court using the normal multitrack procedure.
I decided that the best way to take this case forward was to decide the question of quantum as soon as practicable and in a cost effective manner. The directions made at the CMC provided for witness statements on that issue and written submissions. The issue of quantum would be decided on paper. The amount in question is not concerned with any claim for additional damages. The question is and is only what damages would be awarded to Mr Sheldon assuming, which is not admitted, the acts committed by Daybrook in relation to the photograph were indeed acts of infringement of copyright owned by Mr Sheldon.
The evidence before me consists of three witness statements of Mr Sheldon and two statements of Ms Tippins. Each side has also made written submissions.
Assuming the reproduction and use of the photograph by Daybrook was an infringement of Mr Sheldon's copyright then, since Mr Sheldon has a business as a licensor of copyright in such photographs I will take the correct measure of damages to be a reasonable royalty, i.e. 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.
Daybrook contends the reasonable royalty in this case would be a few hundred pounds. It relies on a quotation of £366 from a photographer, David Baird, for a single image for a club night poster with a print run of 10 (6x4 inches) and a run of 10,000 postcards. The price is based on the photo being used on a promotional poster for a weekly club night at Rock City with a small print run and displayed on the interior and exterior of the club and postcard sized flyers distributed around Nottingham. The cost was calculated using professional software called fotoQuote which is built into Mr Baird's website.
Mr Baird is someone Daybrook regularly engages for work. Ms Tippins explains that a quotation of around this value would be quite usual and anything considerably higher would be received with great surprise by any venue or promotions company. Ms Tippins also refers to some other quotations for photographs with fees of...
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