‘Free’ internet photos?

Posted: 10th May 2013

PhotographerThe dangers of downloading and making use of apparently ‘free’ photographs and other potentially copyright material from the internet have been illustrated by a case in which a professional photographer sued a nightclub that used one of his exclusive celebrity snaps in its marketing material.

Jason Sheldon scored a coup when he managed to get access to the tour bus of US music star, Ke$ha, and pop duo, LMFAO, whilst they were in Birmingham during their 2011 UK tour. He took a series of exclusive photographs, showing the artists lounging on a sofa amidst a backstage party atmosphere with Ke$ha brandishing a bottle of champagne.

Mr Sheldon took his case to the Patents County Court after finding out that one of his exclusive photos was being used by Nottingham dance venue, ‘Rock City’, in a poster campaign to advertise its popular ‘Floor Fillers’ events. He argued that the club had had no right to make unlicensed use of his photograph.

The club's owner, Daybrook House Promotions Limited, insisted it had no idea it could not lawfully use the snap without Mr Sheldon's consent. The company explained that it had downloaded the photo from a social networking site and genuinely believed that it had been posted on the internet to be used freely.

The company offered Mr Sheldon £150 for using his photo on the basis that such a sum reflected payments it had made to other professional photographers. Mr Sheldon said that that was nowhere near enough given the photograph’s exclusive nature and its extensive use in the club's promotional campaign.

Ruling on the quantum of Mr Sheldon’s claim as a preliminary issue, Judge Colin Birss carried out an analysis of sums commonly paid for the right to use exclusive photographs of well-known subjects in a business context. He decided that, if Mr Sheldon ultimately succeeds in proving Daybrook liable, he will be entitled to £5,682.37 in damages, not including VAT and interest. Unless final settlement terms are achieved, liability issues in the case will be tried at a later date.