Copyright Claim Success Does Not Necessarily Mean Victory

When a man copied part of a photograph (showing the Welsh poet Dylan Thomas's head) from a website, he probably had the commonly held (but incorrect) view that because the picture was visible on the Internet, reproduction of it would not constitute a breach of copyright. The picture was used on several web pages offering holiday cottage rentals in Wales.

The company that owns the copyright to the picture discovered the breach and threatened legal action over it. The photograph was removed after only 17 days and the man made an offer of £250 in compensation to the company, which was refused.

In cases such as this, where there is no established market for the subject of the copyright, the calculation of the appropriate sum payable in damages can be extremely difficult. The judge based his ruling on 'an investigation into what the parties would have agreed by way of payment for the use made of the copyright work in issue in a hypothetical negotiation immediately before infringement'. He was aided by evidence relating to the cost of obtaining a photograph of Dylan Thomas available from a third party. The judge concluded that the offer of £250 was reasonable and awarded that sum in damages to the company.

Concluding that the man who had incorrectly made use of the picture had acted swiftly to remove it and tried to settle the claim promptly and fairly, the judge also decided that his travelling costs to the court hearing should be deducted and he refused to allow the successful copyright owner to claim its own costs from the man. This left less than £90 payable to the company that had brought the action.

An appeal against that decision failed.