25 January 2012

Damages for Infringement of Copyright in Photographs: Hoffmann v Drug Abuse Resistance

A few years ago it became possible for photo libraries to sniff the Internet for unlicensed copies of their photographs. When they found one they demanded pretty steep damages for copyright infringement. Often the owners of the websites were decent people who had acted in the sincere belief that they were entitled to use the snaps. Frequent questions at my IP clinics were: "Have they got a case?" and "Do we really owe them that much." Judge Birss QC's documents only decision in Hoffman v Drug Abuse Resistance Education (UK) Ltd [2012]  EWPCC 2 (19 Jan 2012) answers both those questions..

Why the Case was Conducted in Writing
The reason why this was a documents only decision is  that the defendant went into liquidation before the acton came on for trial. Even though the liquidator advised him that no creditor was likely to get a dividend, the claimant asked for judgment.  Rather than put the parties to further expense, the judge ordered amended particulars of claim and a letter from the defendant answering that claim to stand as evidence pursuant to CPR 32.61 and para 31.1 of the Part 63 Practice Direction.  That was despite the fact that neither party's statement of case had been prepared by a lawyer.

The Facts
The claimant was a professional photographer who had taken photos of amphetamines, cannabis, crack and other drugs. His work had appeared on a government sponsored website called "Talk to Frank". The defendant was a charity that had helped schoolchildren understand the dangers of substance abuse and provided them with life skills to tackle peer pressure to take drugs. It commissioned a website from a developer who saw the photos on "Talk to Frank".   Assuming them to be Crown copyright and thus free to use  it posted them on the defendant's site in the mistaken belief that it did not need the photographer's permission. And of course the defendant relied on what its designer had said to it..

Liability
In the absence of conventional pleadings the judge had to do the best he could. The claimant complained that the defendant had infringed copyrights subsisting in his photographs. He referred to s.16 of the Copyright, Designs and Patents Act 1988 but did not specify any infringing act. The judge held that the defendant had communicated the photographs to the public within the meaning of s.16 (1) (d) as amplified by s.20:
"........  in this case the claimant's artistic works have been made available to the public on the defendant's websites by electronic transmission in such a way that members of the public may access the works from a place and at a time individually chosen by them."
By so doing it had infringed copyright. The defendant's belief that it was entitled to use the photos afforded no defence.

Section 97 (1) Defence
S.97 (1) of the Act provides a partial defence where the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates but that did not apply here. The defendant knew that copyright of some sort subsisted in the work but believed wrongly that he was allowed to use it. 

Quantun
The claimant sought damages of £28,500 based on an estimated revenue of £250 per photograph per year over 4 years together with a further 50% uplift on top for the use of the photographs as thumbnails. The judge thought that was too high. He directed himself at paragraph that the measure of damages was the sum that a willing user would have agreed to pay a willing photographer to post the photographs on its website.  As the photographs were pictures of drugs the likely market for such photographs would have been customers in the public and charitable sectors. His Honour assessed damages at £10,000.

Interest
As the infringement had taken place over 4 years during which period base rate had fallen from 5.75% to 0.5% the judge fixed interest at 4% - an average of 3% for the period between 2007 and 2011 plus 1%.

Moral
So the answer to be given in clinics is "yes" the photo libraries do have a case and "yes" they are entitled to the going rate for the use of their photo though that will vary according to the market for the work.

Further Information
Should anyone wish to discuss the question of costs with me further, he or she can call me on0800 862 0055 or use my contact form. I can also be reached on Facebook, Linkedin, twitter or Xing.

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