Daybrook House Promotions Ltd which runs Rock City in Nottingham, describe themselves as “The UK’s best Live Venue and Club” and their website claims “We believe our big company capability and small company ethics make us unique”. The company used an exclusive photograph taken by Jason Sheldon of the American pop star Ke$Ha and Grammy Award winning pop duo LMFAO playing around on a sofa on their tour bus to promote their business. Daybrook’s use of the image was unlicenced.
Daybrook House Promotions have now settled Jason Sheldon’s claim by agreeing to pay £20,000 in an out of court settlement. Sheldon had originally invoiced £1,350 for the infringement but in response Daybrook offered the photographer just £150 for their use of the image and continued use of the image going forward.
Sheldon began proceedings to recover the money he felt he was owed by using the government’s money claim online procedure designed to make justice “affordable and accessible to all”. The case was transferred to the Patents County Court in London and the first meeting took place in December 2012.
Cheetah Pants: Daybrook House Promotions used a photograph by Jason Sheldon without his permission in a publicity montage. When Daybrook offered £150 for the unlicenced use Sheldon took them to court and won £20,000. Photos © Jason Sheldon and others.
By then the photographer had found that his photograph had been published far more extensively. The court accepted that Daybrook had published it as part of a montage of images, as part of a banner of photographs and online in a montage, in a banner on a large poster, in placard posters, in numerous smaller posters and on postcard sized flyers as well as online advertisements on the website and on Daybrook’s Facebook page. Daybrook had made no attempt to obtain permission and disclosed none of these additional uses.
In a hearing before His Honour Judge Birss QC at the Patents County Court on 8 May 2013 Daybrook provided quotes from other photographers that they claimed would value the use at just a few hundred pounds. Sheldon provided evidence of quotations for similar uses from Getty Images, Retna and Rex Features that ranged from £2,400 to £14,600.
The particular photograph at issue was skilfully taken in difficult conditions, unusual in its nature and exclusive to Jason Sheldon. Sheldon points out that he had to work under pressure of time and in poor light. The original planned location was unsuitable and the cramped nature of the final location narrowed his lighting options considerably. Sheldon’s resourcefulness is shown in the dynamic and attractive image that he produced in spite of the circumstances.
Recognising that Ke$Ha and LMFAO are well known and current acts and that this made the image more valuable than other more run of the mill photographs Judge Birss wrote: “The question is focussed on the actual photograph Daybrook used.”
Party at a Rich Dude’s House: US pop stars Ke$Ha and LMFAO cavort in a photograph by Jason Sheldon. Licenced exclusively to Ke$Ha Sheldon’s image was used extensively by Daybrook House Promotions without the photographer’s permission. Photo © Jason Sheldon
Recognising the unique nature of Sheldon’s photograph Judge Birss continued: “A factor of even more importance is the exclusivity of access. One of the things which makes the photograph interesting is its back stage party atmosphere, which in turn derives from the exclusivity granted to Mr Sheldon. That is a factor which will enhance its value.”
Judge Birss rejected Daybrook’s valuation preferring Sheldon’s detailed break down of fees which contained what he described as “convincing corroborative material” from Getty Images and Retna. The judge also recognised that it would not be worthwhile for a photographer to go to the effort of gaining exclusive access to a location, merely to licence the resulting images for a few hundred pounds.
His Honour Judge Birss assessed that a fair licence fee for legitimate use would be £5,682.37 exclusive of VAT and interest. Following that hearing the two parties negotiated an overall figure covering the infringement and Sheldon’s costs. Daybrook agreed to pay Sheldon a sum of £20,000.
Jason Sheldon describes this as a “very useful judgement in the public domain”. It should deter others from infringing copyright photographs and encourage realistic negotiation and early settlement by infringers who are caught publishing a photographer’s work unlawfully. Mr Sheldon is to be congratulated on his determination and tenacity.
• His Honour Judge Birss’ judgement on Jason Sheldon v Daybrook House Promoitions Ltd. at the Patents County Court, London, May 8th 2013.
Text © Graham Harrison and David Hoffman, September 25th 2013
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