Sheldon, a professional photographer, was a member of the British Press Photographers Association and ran a business in which he licensed copyright in photographs. In 2011 he had obtained exclusive access to the tour bus of American pop artiste Ke$ha, who was in the United Kingdom for a tour. He took a photograph (the photograph) of Ke$ha and the group LMFAO in a back stage party atmosphere, lounging on a sofa, with Ke$ha holding a bottle of champagne. Daybrook House, which ran the Rock City nightclub in Nottingham, used the photograph in connection with posters advertising its events.
Sheldon sued for copyright infringement, citing Daybrook House's unlicensed use of the photograph. Said Daybrook House, while the photograph had admittedly been used, the company had not appreciated that it was an image which it was not entitled to use; after all, it was freely available on the tumblr social network service and Daybrook House said it genuinely held the mistaken belief that it could use it.
In these proceedings Judge Birss had to determine as a preliminary issue what damages would be awarded on the assumption -- which was not admitted -- that the acts committed by Daybrook House did indeed infringe his copyright. According to Sheldon, the artists featured in the photograph were award-winning and internationally renowned and that the famous subject matter and the exclusive access to the tour bus were relevant to the sums a photographer in his position would charge to licence such a photograph and would increase the price.
|Judge Birss: the exclusivity is worth more than|
This blogger wonders whether it is realistic to separate out the subject-matter of the photograph from the exclusivity in this manner. Were it not for the fact that the photo featured Ke$ha and LMFAO in the first place, the opportunity which the exclusivity gave for the relaxed intimacy of the sofa setting to be captured by the photographer would surely be of little commercial significance. What do readers think?