Andrew Tipping v Mark Smith

Damages for copyright infringement are compensatory, not punitive. A reasonable royalty is assessed by asking what willing licensor and licensee would have agreed, taking account of their bargaining positions and any realistic non-infringing alternatives. A claimant’s established charging structure may provide a market benchmark. A discounted per-use rate may be reasonable where each use contains a variable amount of protected material and the licence covers extensive use. Interest compensates for being kept out of money and is assessed broadly by reference to people with the claimant’s general attributes. In IPEC, costs caps should be lifted only in truly exceptional cases, though costs may be allocated flexibly between stages.

The claimant, a photographer who retained copyright in photographs created for Max Power magazine, sued over their use in 1,432 social media posts promoting the defendant’s Max Power Reunion accounts and events. Copyright infringement had been admitted, and summary judgment on liability was entered at a case management conference on 22 February 2025. The quantum trial concerned the reasonable royalty that willing licensor and licensee would have negotiated for the use. The court also determined interest and costs.

The court entered judgment for the claimant on quantum and consequential matters. It awarded £56,850 damages, £19,741.67 interest and £58,075 costs.

1. Damages for infringement were compensatory: the aim was, so far as possible, to place the claimant in the position he would have been in absent the wrong, not to punish the defendant. The claimant bore the burden of proof, and damages could be assessed liberally. The court had in mind the principles summarised in Original Beauty Technology et Ors v G4k Fashion Limited et Ors [2022] F.S.R. and the user-principle authorities identified in Henderson v All Around the World Recordings Ltd [2014] EWHC 3087 (IPEC) and Force India Formula One Team Limited v 1 Malaysia Racing Team Sdn Bhd [2012] EWHC 616 (Ch).

2. The hypothetical negotiation had to reflect the parties’ bargaining positions and realistic alternatives. The claimant’s established feature rate, retained copyright, and evidence of his work provided a sound benchmark. The defendant had no credible non-infringing alternative for achieving the same nostalgic appeal and building interest in commercial events. The court accepted £37.50 per post, calculated as one eighth of the claimant’s £300 feature rate. That rate reasonably accommodated posts containing differing numbers of photographs and already reflected a substantial volume discount. Use across both social media sites was properly included.

3. Under section 35A of the Senior Courts Act 1981, interest was discretionary. The court applied the broad approach summarised in Carrasco v Johnson [2018] EWCA Civ 87 and Geofabrics Ltd v Fiberweb Geosynthetics Ltd [2022] EWHC 2363 (Patents), assessing the position of a person with the claimant’s general attributes. Given his part-time, semi-retired status, 2.5% above base rate was appropriate, running from 19 November 2019.

4. The court declined to lift the IPEC costs caps. The discretion under the Civil Procedure Rules 1998 should be exercised to lift the caps only in truly exceptional cases. Although the defendant’s position and conduct could be criticised, they did not approach that threshold. The court followed Westwood v Knight [2011] EWPCC 11 in allowing costs to be allocated flexibly between stages, including the relevant advice and reply costs. Applying the ordinary rule that the unsuccessful party pays the successful party’s costs, it ordered the defendant to pay the claimant’s summarily assessed costs.

The total payable was £134,666.67.

This was a first-instance quantum judgment. The judgment records that summary judgment on liability was given at a case management conference on 22 February 2025.