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Court awards damages of £2851.42 for unlawfully using one image on a website

Posted: Tue Dec 11, 2018 1:46 pm
by Fatty
A small claims case at the Intellectual Property Enterprise Court ( IPEC ) has been published. Normally small claims track judgements are not published and so its rare to actually see in black and white the sort of decisions made by the court. Apparently the photographer concerned went to great effort to have the judgement published.

In this case it revolved around a single photograph which was used on a business website. The defendant's defence was that they were not responsible as it was their web designer who created the web page concerned. Given that the defence was basically a re-run of David Hoffman vs Drug Abuse Resistance Education (UK) Ltd then its not surprising that judgement was awarded in favour of the claimant.

No doubt of particular interest was the amount of damages awarded, which was £1500.00 damages, £306.72 interest, £285.00 Court Fees and £759.70 Litigant's in person costs which came to a total of £2851.42. The photographer in question normally charges £195.00 for reproduction of images with a credit and £390 for reproduction without a credit, therefore this the damages award was approximately 4x the normal value of the work.

Of particular interest was the award of £759.70 in "Litigant's in person costs". Normally in the small claims track, claimants are not entitled to claim for their time, however under the Civil Procedure Rules, the court may award additional costs if one party has behaved unreasonably. In this case, the Court ruled that the defendant behaved unreasonably as they had made no significant attempt to settle the claim and had not fully engaged with the claimant. They had sent one email to the claimant denying liability and filed a short defence, both blaming their web designer. This is particularly important because defendants are regularly advised to ignore claims and now we can see that if this advice is followed for legitimate claims it has a price and that price is £759.70.

Also of interest is that the defendant has was found liable for primary infringement and not secondary infringement. There has been at least one contributor that has suggested that infringement under the circumstances of this case would amount to "secondary infringement" , however the court ruled that this was not the case. I also know of no cases where a digital image unlawfully used on a website was found to be "secondary infringement". I think "secondary infringement" is more applicable to the importing of physical goods rather than internet reproductions of digital photographs.

There is more information on photographers organisation EPUK website

Re: Court awards damages of £2851.42 for unlawfully using one image on a website

Posted: Tue Dec 11, 2018 9:09 pm
by AndyJ
Hi Fatty,

Once again, a word of caution about relying on the results of individual cases. While Mr Webb is to be congratulated for successfully bringing this case (his second before the IPEC), in this instance the defendant was not represented in court and the entire trial lasted a mere 45 minutes. Cardiff Steel Erectors Ltd (the defendants) only submitted a short written defence and obviously wasn't in a position to challenge any of Mr Webb's submissions as to quantum. This was only one step removed from a default judgment, which are notoriously poor yardsticks by which to assess average damages.

Re: Court awards damages of £2851.42 for unlawfully using one image on a website

Posted: Wed Dec 12, 2018 11:11 am
by AnnH
This sounds extremely similar to my own case (which is currently in the court system). My defendant also refused to engage in pre-action dialogue or negotiation, and his defence is similarly deflective.

It will be interesting to see how my result compares to this, as and when it's eventually heard.

Re: Court awards damages of £2851.42 for unlawfully using one image on a website

Posted: Wed Dec 12, 2018 11:51 am
by Fatty
Its true that the defendant did not appear in court in person, however that is the beauty of the Small Claims Track, neither claimant nor defendant needs to appear, you can have your arguments heard on paper. With trainfares sometimes costing over 300 GBP and the value of a lost days work, sometimes the cost of attending court is more than the value of the case being argued.

With regards to liability, the defendant did put their case. They said they contracted a web designer to add content and that the web designer was therefore responsible. Given this as a defence, it is unlikely any oral submissions or professional representations would have saved the defendant from the inevitable. This defence argument is simply not viable.

Its not known what if any legal advice the defendant had received but a specialist IP solicitor would likely have advised them to settle in which case they would not have been a defendant and would have saved themselves a significant sum.

If the defendant had turned up it may or may not have influenced the amount of damages awarded by the court. It should be born in mind that this influence could just as easily increase as well as decrease the amount of damages. If attitudes are expressed in court that are sometimes expressed in forums, such as" its all a scam" etc, then it may well result in an increased 97(2) award. Sometimes its better to say nothing. In the same claimants other published judgement the defendant did turn up and the result was the court awarded 6x the normal value of the work compared to approximately 4x as in this case.

Re: Court awards damages of £2851.42 for unlawfully using one image on a website

Posted: Wed Dec 12, 2018 12:59 pm
by AndyJ
Hi Fatty,

You may have misunderstood the point I was making. I have no quibble with the fact that the defendants clearly had no real defence and therefore even if they had attended the hearing, the outcome over liability was unlikely to have been any different. I don't know if you have attended court for quantum hearings, but I can assure you, it is very worthwhile a defendant attending, if possible, since they can have their say, especially where aggrevated damages are at issue. The judge cannot speculate over possible mitigation and so very often the court will have little option but to accept the claimant's version of the conduct of litigation and his assessment of damages.

Your point about the cost of attending court is noted, but travel costs and lost earnings are admissible in the IPEC, although this is of little help to the losing party, and so this may well be why no-one travelled up from Cardiff to attend the hearing. Indeed in this case, Mr Webb was awarded £189.70 for his travel costs on the day. I assume that he travelled down from Cheshire to attend.

Re: Court awards damages of £2851.42 for unlawfully using one image on a website

Posted: Wed Dec 12, 2018 5:45 pm
by Fatty
Andy J, I understand what you are saying, however I should point out that the court don't just rubber stamp whatever additional damages the claimant is asking for. Additional damages are always an amount decided by the court and they take that role seriously, this is why there is a quantum hearing even if there has been a default judgement in regards to liability.

Yes, its true that if the defendant came to court he might possibly have improved his position, however it is unlikely to have made a radical difference. The court would be primarily swayed by hard facts, for example the fact that the use was commercial, the value of the use to the defendant, removal of rights management information etc. These hard facts would not change by the defendant turning up and smiling sweetly.

Having said that, I would always recommend defendants actively defend themselves if they are choosing to defend a case. It seems strange that defendants choose to defend a High Court action and then don't bother to turn up. Speaking to a number of photographer claimants over a number of cases, it appears its very common that defendants do not attend the hearing or put in much if any effort with a written submission. My guess is that even at this late stage some of them still think its some sort of scam.

I know of one very recent case were the claimant even emailed and reminded the defendant of the court appointment a week before the hearing and told them if they were going to defend their case, they should at least turn up. That defendant still did not turn up and like this case the court awarded a 4 figure damages award plus costs.

I think it will help the situation if in the future IPEC SCT cases are published on bailii. The current justice in the dark is in nobodies interest.