Small Claim gets bigger

MEMBER Alan Mackie found one of his photos used without permission on - and when he contacted the owners they denied liability. So he took them to Small Claims Court in Aberdeen.

"After some delay caused by the Defenders playing silly beggars", Alan reports, "the case finally came to proof on 20 April".

The Sheriff, having heard both sides give evidence under oath, explained that the law allowed for punitive damages in cases of breach of copyright - at which point Alan knew he had won. The Sheriff decided that Alan was entitled to £400, which was the amount he had on his price list, based on the suggested rates in the NUJ Freelance Fees Guide.

Then the Sheriff added 50 per cent, the amount Alan had in his terms of trading as an upgrade if they didn't want to include his name on the photo, which of course they hadn't. That made £600 so far.

The Sheriff then decided that Alan was not entitled to additional damages for the use of the photo being "derogatory" - or diminishing Alan's "honour and reputation" - as his name wasn't on the website.

However, their use of the photo was, in these circumstances, clearly a flagrant breach of copyright and therefore Alan was entitled to a small additional sum for that aspect of his claim. In this case 50...

"And I thought he was going to say 'pounds'," Alan reports, but the Sheriff went on "...per cent". That made £900 in total. Unfortunately Alan had asked only for £750, the maximum in Small Claims Courts in Scotland, so that's what he got - plus interest and expenses.

A word of warning, though: Small Claims Courts (in England) have been known to refuse to take cases involving copyright, when the judges believe it's "complicated". That could lead to the case being transferred to County Court or its equivalent. And that could lead to the need to pay solicitors, if you are not confident to present your case to the judge yourself - and to a risk of paying the other side's legal costs if you lose. Alternatively the County Court can refuse to hear the case, because the amounts claimed are generally small compared to costs.

The NUJ's Copyright Committee is working on finding a way out of this catch-22 situation. And the editors of the Freelance Fees Guide are working on a new section offering advice on negotiating payment for use without permission.

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