Peter Adediran’s specialist niche area of practice is intellectual property law – both contentious and non-contentious – as it relates to digital works including photographs; text; databases; video; music PAIL Solicitors. Read more on PAIL’s Resource Library
Successful conclusion to High Court website digital product catalogue and text copyright infringement claim November 2018.
Cornices Centre Ltd v (1) Fibrous Plasters Ltd (2) Angelika Zdrojewska (3) Andrzej Olenski IP-2017-000157
In this case I represented Cornices Centre ltd, the Claimant, on behalf of PAIL® Solicitors. This case concerned infringement of copyright in various works including 356 photographs of plaster cornices products. The Claimant has for many years used the works to advertise its products and in its catalogues. A huge amount of work on the part of the Claimant’s director, Mr Sledziewski, went into their creation. The attractive and clear presentation of the Claimant’s product range to its customers has undoubtedly been a significant contributor to its success over recent years.
This case involved a Herculean amount of work to achieve a successful outcome for the Claimant, particularly with setting out the Claimant’s evidence and preparing bundles for four separate interim applications.
Some infringements were admitted, but others were not. The principle defence to the claim was based upon an alleged oral contract giving rise to an alleged licence. There was also a counterclaim in which it was alleged that the Claimant had infringed copyright belonging to the Third Defendant. A CMC took place before Mr Recorder Douglas Campbell on 1 February 2018. Only after the CMC did the Claimant discover that on 24 January 2018 the First Defendant was wound up and accordingly the claim against it automatically stayed pursuant to section 130(2) of the Insolvency Act 1986. The Claimant pursed the claim against the Second and Third Defendants, who were alleged to be jointly and severally liable for the First Defendant’s infringing activities. The Defendants should be understood as being the Second and Third Defendants.
Settlement of the claim and counterclaim
On 14 September 2018, shortly after exchange of witness statements, the Claimant served an offer to settle all outstanding issues in the claim and counterclaim pursuant to CPR Part 36. The Offer was accepted on 21 September 2018 and the Defendants made payment of £31,000 to the Claimant in respect of damages and interest; giving undertakings not to infringe the Claimant’s copyright works, acknowledging that the Claimant is the owner of the copyright in the works that were the subject of the counterclaim. The acceptance of the Offer amounted to total capitulation by the Defendants; the Claimant has obtained all significant non-monetary relief that it sought and a substantial payment in respect of damages, and the counterclaim was, in effect, totally abandoned. I applied for the costs to be summarily assessed in the sum of £45,520.00, and the Court granted that judgment order on Friday 09 November.
How did this case add to our experience of copyright disputes?
This case is interesting for several reasons. Just one of these is the hot issue of – How much should an infringing user of another’s intellectual property right be made to pay for the infringement?
In our case, the copyright works consists of 356 separate photographs, created by Mr Sledziewski, and owned by our client. It is a matter of significant dispute as to the economic value to be placed on each photograph in these cases. The recent cases are Absolute Lofts v Artisan Home Improvements  EWHC 2608 (IPEC) and Flogas Britain Limited v Calor Gas Limited  EWHC 3060 (Ch). The User Principle applied: quantifies the sum payable to the successful claimant as the licence royalty that the defendant would have had to pay in order to make the infringing acts lawful. As you can imagine Defendants will want to price each work at the price of equivalent stock photographs which start from $0.16 per image. Our damages of £31,000 plus interest is therefore a significant award and victory. The Defendants were represented by a leading law form in the The Legal 500 – Chambers & Partners – Boutique Firm of the Year The Lawyer, and it was vigorously defended running for 2 years, but in the end the Claimant was successful.
This case involved a Herculean amount of work to achieve a successful outcome for the Claimant, particularly with setting out the Claimant’s evidence and preparing bundles for several interim applications. The successful result could not have been achieved without the assistance of counsel at 11 South Square; my support team and very well organised clients.
By Peter Adediran
14 11 2018
This article details the facts of a copyright infringement case relating to photographs forming a product catalogue and text on a website for which Peter Adediran represented the Claimant. If you are seeking advice on bringing or defending a copyright claim and have read this article, you must take the opportunity to go and seek professional legal advice from a solicitor or barrister. The information and any commentary on the law contained on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by PAIL Solicitors. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comments on this site. No responsibility is accepted for the content or accuracy of linked sites.