Damages for unauthorised use of photographs

The Patents County Court nowadays has to have a clear idea about the amount of damages at stake in actions before it, so in Sheldon v Daybrook House Promotions Ltd [2013] EWPCC 26 (8 May 2013) it had to take an initial view about the value of a claim for a photograph of a couple of popular musicians together.  This would determine whether the case should remain on the small claims track or whether it should be allocated to the multi track.  The amount that the Court thought might be at stake would also have a significant bearing on the prospect of settlement.

The Claimant was a professional photographer, and in that capacity he had exclusive access to the tour bus on which the musicians were travelling.  The Defendant ran a nightclub and without permission it used the photograph on printed material, online advertisements and its Facebook page.  It said it would have expected to pay no more than a few hundred pounds for that but the Judge was unimpressed.  He took the view that it was irrelevant what the claimant would have paid, and what mattered was the Claimant’s evidence about the rates that he would normally charge for such a photograph.  On that basis he decided that if the Claimant succeeded the damages that would be awarded would amount to £5,682 – plus VAT, of course.