Legal Updates - Copyright Licensing

Intellectual Property – Copyright – Copyright Licensing – Photograph

The Patents County Court recently handed down its preliminary ruling in the case of Jason Sheldon v Daybrook House Promotions Ltd [2013], on what constitutes a reasonable royalty for copyright infringement.

Background

The claimant, Jason Sheldon (“J”) is a professional photographer.
J obtained exclusive access to American pop star, Ke$ha’s, tour bus and took photographs of Ke$ha and LMFAO.
The photograph showed the artists lounging together on a sofa.
In March 2012, J discovered that Daybrook House Promotions Ltd (“Daybrook”) was using the photograph in connection with its advertising campaign for an event it was promoting for the Nottingham dance venue, Rock City.
J asked Daybrook to stop using he photograph and sent an invoice in the amount of £1,351.00 for its use.
Daybrook’s claimed that the photograph was freely available on social networking site, Tumblr and he was entitled to use the image.
In Daybrook’s view, the proper fee to be paid for the use of the photograph should be “a few hundred pounds”. In his regard, Daybrook offered J £150.

Issue

The main issue of this case was what a reasonable licence fee would be for the use of the photograph.

Decision

The judge’s approach in this case was to equate the correct measure of damages to a “reasonable royalty”.
A reasonable royalty is 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”.
In reliance on a quotation from another photographer, Daybrook contended that a reasonable royalty would be a few hundred pounds.
J’s interpretation of a reasonable royalty ranged from between £2,450 to £14,667.05.
The judge explained that “the issue is not what sum would Daybrook have been prepared to pay for any photograph they intended to use in this promotional campaign. The question is focussed on the actual photograph Daybrook used.” A reasonable royalty should be assessed against the particular copyright work in question.
Thus the question in this case was “What would [Mr Sheldon] have earned for the reproduction of this photographic work by someone wishing to reproduce it?”
Factors considered by the judge included:
- The extent of the use made of the photograph by the infringer;
- How renowned the photographer was; and
- Exclusivity of access. In his case the fact that the photograph was taken at a back stage party, derived from the exclusivity granted to J.
The judge therefore held that the correct measure of damages was £5,682.37.

Further details can be found in the preliminary judgment.

For any queries on copyright law or other IP law issues, you may contact us by email [email protected]. Visit http://www.rtcoopers.com/practice_intellectualproperty.php

© RT COOPERS, 2013. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.