Unauthorised photographs on website
- Himanshu Dasare
- Updated: Thu, 20th Oct 2016
The Absolute Lofts South West London Limited (‘Absolute Lofts’) and Artisan Home Improvements Limited and Darren Mark Ludbrook (‘Artisan’) case emphasises the modern approach taken by the UK judges against unauthorised use of photographs on websites without the photographer’s consent.
It was alleged that Artisan copied Absolute Lofts’ photographs and used the photographs on Artisan’s website. Technically, the claim was about photographs of loft conversions appearing on Artisans’ website, without Absolute Lofts’ permission to use copyrighted material.
The judge offered Absolute Lofts’, the photographs copyright owner, damages plus a separate amount for unfair profits gained by their use.
Absolute Lofts South West London Limited v Artisan Home Improvements Limited and Darren Mark Ludbrook
Absolute Lofts conducts its business in London. The company offers loft conversions to customers who wish to improve their homes.
Craig Colton, the owner of London based Absolute Lofts would, from time to time, upon completion of a loft conversion, take photographs of the work to display on Absolute Lofts’ website. It was common ground that copyright subsisted in these photographs and had been assigned by Mr Colton to Absolute Lofts.
Bradford-based Artisan is also in the business of loft conversion. Mr Ludbrook is a director and sole shareholder. It was not in dispute that Artisan had used Absolute Lofts’ photographs on its website without obtaining prior consent.
Following receipt of a letter before action sent by Absolute Lofts complaining of Artisan’s unlawful use of their photographs, Artisan removed the photographs from their website. Artisan replaced the photographs with licensed images of loft conversions purchased from a stock photograph library for £300.
Artisan admitted that they had infringed Absolute Lofts’ copyrights and accepted liability for such infringements.
The issues before the court were therefore limited to matters of quantum, namely:
- The quantum of compensatory damage due to Absolute Lofts
- Whether Absolute Lofts were entitled to additional damages for the flagrancy of the infringement
- Whether Absolute Lofts were entitled to any benefits accrued by reason of the infringement
How the judge calculated compensatory damages for use of the photographs
There was no suggestion that Absolute Lofts had suffered any detriment from the unauthorised use of copyrighted photographs.
Absolute Lofts operated in London whereas Artisan operated in Bradford. There was a presumption that neither party would expect to overlap in custom or potential customers. It was unlikely that anyone would notice the duplication of photographs on Absolute Lofts and Artisan’s websites.
In this instance, the judge took a view that Absolute Lofts would have welcomed an opportunity to obtain a fee for the use of their photographs by Artisan. What’s more any such fee would be a bonus, albeit the higher the better.
As for Artisan, it was likely that they would have chosen the cheapest option available. There was no evidence to suggest passing off, i.e. there was no specific desire to use Absolute Lofts’ images above any other reasonable loft conversion photographs.
The judge therefore decided that a sensible guide as to what Artisan would have agreed to pay for the use of Absolute Lofts photographs was what they eventually paid for the stock photographs obtained from the photograph library.
Absolute Lofts entitled to additional damages
For instance, were Absolute Lofts entitled to additional damages for any benefits accrued by reason of copyright infringement.
Artisan’s evidence that they had not known the source of the infringing photographs. They had, until receipt of Absolute Lofts’ letter before action, believed that they had been legitimately obtained. However this evidence was refused.
The judge found that Artisan was prepared to mislead their customers and potential customers. They mislead their customers by passing off the loft conversions shown in both the infringing photographs and those purchased from the photograph library as the work done by their company.
Absolute Lofts had succeeded in their claim. The judge found that they were therefore entitled to maximise recovery in respect of additional damages taking into account unfair profits accrued by Artisan through its infringing use of the photographs.
The judge referred to his consideration of the meaning of ‘unfair profit’, where he considered whether damages on top of lost profits should be awarded where knowledge of the infringing nature of Artisan’s acts was established. He concluded that compensation for the actual prejudice suffered, could, where appropriate, include additional sums related to the profit the defendant made from the knowing infringement, not just the profit itself. This would occur, for example, where the defendant had made no financial profit from the infringement but their business had expanded.
Artisan had profited from its infringing use of Absolute Lofts’ photographs. The use of these profits was particularly unfair as it involved a misrepresentation to Artisan’s customers that the photographs depicted work carried out by Artisan. Whilst the benefit to Artisan may not have adversely affected Absolute Lofts, Absolute Lofts suffered prejudice by the fact that it enjoyed no part of the profit accrued by Artisan through the exploitation of Absolute Lofts photographs.
In conclusion, whilst an assessment of quantum of loss suffered under this provision was difficult on the facts, the judge concluded that Absolute Lofts is entitled to receive £6000 in addition to the £300 compensation.
How to protect photographs from copyright infringement?
Photographs are protected by copyright as “artistic works”. The general rule is that the first owner of copyright will be the author or the creator of the copyright work, which in this case is the photographer.
Copyright of a photograph can be transferred or assigned, in whole or in part, to a new owner. Provided that the work is appropriately protected through copyright, transfer of rights can be an effective means of additional revenue.
This case highlighted the importance of policing and monitoring the market to protect your intellectual property. If you find that your photographs are used by someone without your consent, please get in touch with us. We have specialist expertise in handling small and large photograph libraries and can bring or defend claims for single or bulk copyright infringement.