Damages for Copyright Infringement - Tipping v Smith
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Intellectual Property Enterprise Court (HH Judge Melissa Clarke) Tipping v Smith [2026] EWHC 1855 (22 July 2026)
In Damages for Trade Mark Infringement - Fendi Italia and others v Rolo Fashion Ltd and another 30 Aug 2026, I explained that claimants in intellectual property cases whose rights have been infringed have "the choice of seeking damages (compensation for the loss or damage that they sustained as a result of the infringements) to be assessed in proceedings known as 'an inquiry as to damages' or the surrender of any profits that the defendants had obtained from the infringements assessed in proceedings known as an 'account of profits.'" Although Judge Melissa Clarke, who heard Tipping v Smith [2026] EWHC 1855, called the proceedings a "quantum trial" they were also an inquiry as to damages.
Cause of Action
An important difference between Fendi Italia SRL and Others v Rolo Fashion Ltd and Another [2026] EWHC 1703 and Tipping is that Tipping was a claim for infringement of copyright while Fendi was a claim for trade mark infringement. One consequence of that difference was that Judge Melissa Clarke had no doubt that the "user principle", which Judge Hacon called a reasonable royalty, was the appropriate basis for assessing damages for copyright infringement.
Mr Tipping was a photographer who took photos of motor cars, which he licensed for publication in Max Power, a car magazine launched by EMAP and later acquired by Bauer Media Group. Without first seeking Mr Tipping's permission, Mr Smith took photos of pages from back issues of the magazine with his mobile phone, which included reproductions of Mr Tipping's photos, and uploaded them to Facebook and Instagram in accounts called "maxpowerreunion".
Mr Tipping sued Mr Smith for copyright infringement. In his defence, Mr Smith admitted copying. Mr Tipping applied for and was granted summary judgment on 22 Feb 2025. Immediately after giving judgment, Judge Melissa Clarke gave directions for the inquiry, which included an order that Mr Tipping's computation of damages more particularly mentioned below should stand as his points of claim to which Mr Smith could respond in his points of defence.
The Issues
Judge Melissa Clarke directed herself that the only issue she had to decide was the quantum of damages. She said at para [8] of her judgment:
"It is the Claimant's case that the Defendant's use of the Photographs in the Posts from 2018 allowed him to amass tens of thousands of followers on social media and gave him the momentum to promote and then launch 'The Reunion Show' in 2021, which was an unofficial Max Power reunion event. This was followed by 'The Reunion Show' events in 2022, 2023 and 2024. The evidence before the court is that each of the Defendant's Reunion Show events attracted around 3,000 to 4,000 attendees."
"It is the Claimant's case that the Defendant's use of the Photographs in the Posts from 2018 allowed him to amass tens of thousands of followers on social media and gave him the momentum to promote and then launch 'The Reunion Show' in 2021, which was an unofficial Max Power reunion event. This was followed by 'The Reunion Show' events in 2022, 2023 and 2024. The evidence before the court is that each of the Defendant's Reunion Show events attracted around 3,000 to 4,000 attendees."
She added at para [11]:
The judge noted at para [10] that Mr Smith had admitted that he had been involved in organising "The Reunion Show 2021". That was a meetup-style event for fans of the Max Power magazine which took place at Towcester Racecourse on 5 Sept 2021 and was repeated in 2022, 2023 and 2024. Mr Smith's posts were used to promote The Reunion Show, which generated a profit of £4961 from ticket and merchandise sales in the first year.
Her Honour summarised Mr Smith's case as follows at para [12]:
ii) The fee of £37.50 per post is arbitrary and unparticularised;
iii) The willing licensor and willing licensee in a hypothetical negotiation would not have agreed a licence fee of £37.50 per Post which is merely the Claimant's own subjective view of the worth of each Photograph;
iv) Other photographers who had photographs published in Max Power gave the Defendant permission to use their photographs for free; and
v) The Defendant denies making any profit from his use of the Photographs."
She added at para [11]:
"In his Points of Defence the Defendant sought to argue that the Claimant's lifestyle is not consistent with someone that would command a daily feature rate of £300, with reference to, inter alia, the company accounts of a company owned by the Claimant and the value of the Claimant's house but I have not permitted him to expand his defence in this way. The Defendant's position is that a willing licensor and willing licensee would have agreed that no fee was payable, and so damages should be assessed at zero."
Applicable Law
"(i) Damages are compensatory. The general rule is that the measure of damages is to be, as far as possible, that sum of money that will put the claimant in the same position as he would have been in if he had not sustained the wrong.
(ii) The claimant can recover loss which was (i) foreseeable; (ii) caused by the wrong; and (iii) not excluded from recovery by public or social policy. It is not enough that the loss would not have occurred but for the tort. The tort must be, as a matter of common sense, a cause of the loss.
(iii) The burden of proof rests on the claimant. Damages are to be assessed liberally. But the object is to compensate the claimant and not to punish the defendant.
(iv) It is irrelevant to a claim of loss of profit that the defendant could have competed lawfully.
(v) Where a claimant has exploited his patent by manufacture and sale he can claim (a) lost profit on sales by the defendant that he would have made otherwise; (b) lost profit on his own sales to the extent that he was forced by the infringement to reduce his own price; and (c) a reasonable royalty on sales by the defendant which he would not have made.
(vi) As to lost sales, the court should form a general view as to what proportion of the defendant's sales the claimant would have made.
(vii) The assessment of damages for lost profits should take into account the fact that the lost sales are of 'extra production' and that only certain specific extra costs (marginal costs) have been incurred in making the additional sales. Nevertheless, in practice costs go up and so it may be appropriate to temper the approach somewhat in making the assessment.
(viii) The reasonable royalty is to be assessed as the royalty that a willing licensor and a willing licensee would have agreed. Where there are truly comparable licences in the relevant field these are the most useful guidance for the court as to the reasonable royalty. Another approach is the profits available approach. This involves an assessment of the profits that would be available to the licensee, absent a licence, and apportioning them between the licensor and the licensee.
(ix) Where damages are difficult to assess with precision, the court should make the best estimate it can, having regard to all the circumstances of the case and dealing with the matter broadly, with common sense and fairness."
"In Force India Formula One Team Limited v 1 Malaysia Racing Team Sdn Bhd [2012] EWHC 616 (Ch); [2012] RPC 29 Arnold J considered Wrotham Park damages, i.e. of the type awarded in Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798. In Force India damages for breach of a restrictive covenant in a contract were taken to be the amount of money which could reasonably have been demanded by the claimant for a relaxation of the covenant. Arnold J identified the following principles (at [386]):
'(i) The overriding principle is that the damages are compensatory: see Attorney-General v Blake at 298 (Lord Hobhouse of Woodborough, dissenting but not on this point), Hendrix v PPX at [26] (Mance L.J., as he then was) and WWF v World Wrestling at [56] (Chadwick L.J.).
(ii) The primary basis for the assessment is to consider what sum would have [been] arrived at in negotiations between the parties, had each been making reasonable use of their respective bargaining positions, bearing in mind the information available to the parties and the commercial context at the time that notional negotiation should have taken place: see PPX v Hendrix at [45], WWF v World Wrestling at [55], Lunn v Liverpool at [25] and Pell v Bow at [48]–[49], [51] (Lord Walker of Gestingthorpe).
(iii) The fact that one or both parties would not in practice have agreed to make a deal is irrelevant: see Pell v Bow at [49].
(iv) As a general rule, the assessment is to be made as at the date of the breach: see Lunn Poly at [29] and Pell v Bow at [50].
(v) Where there has been nothing like an actual negotiation between the parties, it is reasonable for the court to look at the eventual outcome and to consider whether or not that is a useful guide to what the parties would have thought at the time of their hypothetical bargain: see Pell v Bow at [51].
(vi) The court can take into account other relevant factors, and in particular delay on the part of the claimant in asserting its rights: see Pell v Bow at [54].'
The Court of Appeal in Force India ([2013] EWCA Civ 780; [2013] RPC 36) did not dissent from Arnold J's summary of the law (at [97]).
[19] Wrotham Park damages, though they are for breach of contract, are in all relevant respects the same as those I have to consider under this head, so the foregoing principles set out by Arnold J apply. In the inquiry as to damages for infringement of trade marks in 32Red OKC v WHG (International) Limited [2013] EWHC 815 (Ch), Newey J's assessment was by consent also on the basis of willing licensor and willing licensee. Newey J endorsed the principles identified by Arnold J and expanded on them as follows:
(vii) There are limits to the extent to which the court will have regard to the parties' actual attributes when assessing user principle damages. In particular
(a) the parties' financial circumstances are not material;
(b) character traits, such as whether one or other party is easygoing or aggressive, are to be disregarded [29]-[31].
(viii) In contrast, the court must have regard to the circumstances in which the parties were placed at the time of the hypothetical negotiation. The task of the court is to establish the value of the wrongful use to the defendant, not a hypothetical person. The hypothetical negotiation is between the actual parties, assumed to bargain with their respective strengths and weaknesses [32]-[33].
(ix) If the defendant, at the time of the hypothetical negotiation, would have had available a non-infringing course of action, this is a matter which the parties can be expected to have taken into account [34]-42].
(x) Such an alternative need not have had all the advantages or other attributes of the infringing course of action for it to be relevant to the hypothetical negotiation [42].
(xi) The hypothetical licence relates solely to the right infringed [47]-[50].
(xii) The hypothetical licence is for the period of the defendant's infringement [51]-[52].
(xiii) Matters such as whether the hypothetical licence is exclusive or whether it would contain quality control provisions will depend on the facts and must accord with the realities of the circumstances under which the parties were hypothetically negotiating [56]-[58]."
Evidence
Both Mr Tipping and Mr Smith gave oral and written evidence. For reasons that she set out in her judgment, the judge preferred the testimony of Mr Tipping. The Notional Licence Fee
Mr Smith criticised Mr Tipping's proposed licence fee of £37.50 per post on various grounds, none of which persuaded the judge. For all those reasons and because Mr Smith had not sought to counter Mr Tipping's calculation by providing an alternative licence fee other than zero, she found that a willing licensee and a willing licensor in the positions of the claimant and defendant would have arrived at an agreed licence fee calculated at £37.50 per Post for 1432 posts. By multiplying £37,50 by 1,432, the judge arrived at a total of £56,850.
Interest
After considering para [78] of Charlotte May's judgment in Geofabrics Ltd v Fiberweb Geosynthetics Ltd [2022] EWHC 2363 (Patents), the learned judge held at para [36] that the award of interest under s.35A of the Senior Courts Act 1981 was a matter for her discretion judicially exercised. She considered that the rate of 3% above base rate sought by the claimant was a little high and substituted 2.5% instead. She ordered interest to run from 19 Nov 2019. She computed accrued interest at £19,741.67.
Costs
The judge assessed the claimant's costs at £58,075.
Comment
The key takeaway from this case is that a defendant who objects to a claimant's proposed notional licence fee should have a credible alternative licence fee of his own, preferably supported by comparables or other evidence. Judge Melissa Clarke's review of the authorities on the assessment of damages in intellectual property disputes generally and the user principle in particular is also useful. So, too, is the discussion on the judge's discretion in awarding interest under s.35A of the Senior Courts Act 1981 and in summarily assessing costs. Anyone wanting to discuss this case may call me on +44 (0)20 7404 5252 during UK office hours or send me a message through my contact form at any time.
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