Oh Maggie I couldn’t have cried any more

When a district judge says to the parties something along the lines of ‘This is a modest claim. It has tears all over it. We cannot make people mediate but I repeat the encouragement and request’, the parties should take note. This was the message delivered by District Judge Hodge. The case in question is a claim for copyright infringement in a photograph which Rod Stewart is alleged to have used alongside hundreds of other images as part of a running backdrop at one of his gigs. The photograph which is of him and a former girlfriend is shown for all of 8 seconds. The claim is being brought by Julia McLennan and damages for £9,999,99 are sought. The background on the photograph which dates back to the 1960’s is murky. McLennan claims to have acquired the copyright in 2004 from photographer Christopher Southwood, a school friend of Stewart. Southwood allegedly gave a copy of the photograph to his friend as a keep safe but did not authorise Rob to reproduce it. After failing to sort this out with Rod’s team McLennan launched a court action claiming £9,999.99 in damages. Rod’s team say the level of damages sought is absurd for the brief innocent and incidental use by Sir Rod of a personal snapshot which was in any case part of another, more substantial, artistic work.

Briffa Comment

If McLennan can show that she has copyright in the image the big question is what damages are payable. Rod is no stranger to this type of claim having been sued for $2.5m for use of an image of the back of his head. Is this one however one to fight? In the UK unless a copyright owner can show that the use made of the image was a flagrant disregard of the owner’s rights, the measure of damages is what the user would have paid had he sought permission in the first place. McLennan will need to show that a fee of £9,999.99 would have been paid. To back up such a claim McLennan may well provide evidence that the image in question or similar images in her collection command usage fees of that order and that the figure is a reasonable fee in the circumstances. The case is being fought in the small claims division of the Intellectual Property Enterprise Court where a successful party cannot recover its legal costs and which places a maximum of £10,000 on damages recovery to parties who use the court. Has anyone told Sir Rod how easy this one might be to settle?