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Photographic copyright and the Intellectual Property Enterprise Court in historical perspective

Published online by Cambridge University Press:  19 December 2018

Elena Cooper  and
Sheona Burrow
Elena Cooper*
Affiliation:
CREATe, School of Law, University of Glasgow, Glasgow, UK
Sheona Burrow
Affiliation:
CREATe, School of Law, University of Glasgow, Glasgow, UK
*
*Corresponding author: Email: [email protected]
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Abstract

This paper provides an in-depth case study of the enforcement of copyright in photographs by certain rights-owners today: freelance professional photographers who derive income from the exploitation of photographic copyright. Referring to the theoretical framework of Guido Calabresi and A Douglas Melamed, the paper reflects on the implications of the case study for the nature and function of copyright in a specific context today. Bringing the experience today into conversation with the enforcement of copyright by professional photographers in past times (the late nineteenth/early twentieth centuries), the paper notes the influence of the bureaucratisation of copyright exploitation (ie exploitation through picture libraries) on legal decision making in a particular forum today: the Intellectual Property Enterprise Court Small Claims Track. The paper concludes with more general reflections on the case study's implications for the courts and copyright policy-makers today.

Keywords

copyrightIntellectual Property Enterprise Courtphotographspicture librariesenforcementliability rules
Type
Research Article
Information
Legal Studies , Volume 39 , Issue 1 , March 2019 , pp. 143 - 165
Copyright
Copyright © The Society of Legal Scholars 2018 

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Footnotes

†

The authors would like to thank Ronan Deazley, Martin Kretschmer, Ruth Towse, Alison Firth, Jessica Sibley, Stephen Bogle, Pauline McBride and Jill Robbie for comments on an earlier draft of this paper. The authors also benefited from the discussion of the paper following a presentation as part of the CREATe Studio seminar series, at CREATe, Glasgow University, in December 2016. The authors also thank the professional photographers who participated in interviews and responded to email enquiries by both co-authors, and CREATe, University of Glasgow, for funding the transcription of cases decided by the Intellectual Property Enterprise Court (Grant no AH/K000179/1).

References

1 Calabresi, G and Melamed, AD ‘Property rules, liability rules and inalienability: one view of the cathedral’ (1971–1972) 85 Harvard Law Review 1089CrossRefGoogle Scholar at 1092. This theoretical framework – referred to by one intellectual property scholar as ‘the foundational literature on legal entitlements’ (Merges, RP ‘Of property rules, Coase and intellectual property’ (1994) 94 Columbia Law Review 2655CrossRefGoogle Scholar at 2655) – has been applied by a number of scholars to intellectual property law, perhaps most famously Merges, RP ‘Contracting into liability rules: intellectual property rights and collective rights organizations’ (1996) 84 Cal L Rev 1293CrossRefGoogle Scholar at 1303, discussed below. For other examples applying the Calabresi/Melamed framework to intellectual property see Lemley, MA ‘Contracting around liability rules’ (2012) 100 Cal L Rev 463Google Scholar; Oliar, D ‘Property rules, liability rules and the intentional infliction of harm’ (2012) 64 Stanford Law Review 951Google Scholar; Reichman, JH ‘Legal hybrids between the patent and copyright paradigms’ (1994) 94 Colum L Rev 2432CrossRefGoogle Scholar.

2 Copyright, Designs and Patents Act 1988, s 16; Information Society Directive 2001/29/EC, Arts 2 and 3.

3 Merges (1996), above n 1, at 1392.

4 Ibid, at 1302, 1303 and 1392.

5 The empirical study carried out by Sheona Burrow as PhD candidate, CREATe, University of Glasgow, supervised by Ronan Deazley, Queen's University Belfast and by Martin Kretschmer and Kris Erickson, CREATe, University of Glasgow: Access to Justice in the Small Claims Track of the Intellectual Property Enterprise Court (IPEC): An Empirical Enquiry into Use by Creative SMEs, unpublished PhD thesis, University of Glasgow, 2017.

6 Though as to problems in locating certain court files: see below n 27.

7 The review by Sheona Burrow of all Court Files in the period 2012–2015 revealed a total of 28 cases brought by photographers or their agents in which a judgment was delivered. Two of these cases were decided on the papers, but despite two formal requests to the Court, copies of the judgments were not provided. Of the 26 cases in which a judgment was delivered following a hearing, the Court provided the necessary details for a judgment to be transcribed in relation to 21 of these cases. It was not possible to transcribe the five remaining cases because, despite numerous requests, the Court did not provide accurate details of the Court Room number in which proceedings took place, which is an essential pre-requisite for the correct tape to be located by the Court Recordings and Transcription Unit.

8 See text to n 1.

9 Merges (1996), above n 1, at 1303.

10 This work was conducted by Elena Cooper. These findings are developed further in a monograph, concerning the history of artistic copyright more generally, in the nineteenth and early twentieth century: Cooper, E Art and Modern Copyright: The Contested Image (Cambridge: Cambridge University Press, 2018)CrossRefGoogle Scholar.

11 Streeter, T ‘Broadcast copyright and the bureaucratization of property’ in Woodmansee, M and Jaszi, P The Construction of Authorship: Textual Appropriation in Law and Literature (Durham, NC: Duke University Press, 1994) pp 303–326Google Scholar, 312 and 310, also published in (1991–1992) 10 Cardozo Arts & Ent LJ 567.

12 Bellido, J and Macmillan, F ‘Music copyright after collectivisation’(2016) IPQ 231Google Scholar, 231, arguing that the Copyright Act 1911 set the ‘cornerstone of the modern “music business”’ with which the emergence of the first music collecting societies was closely connected. Bellido and Macmillan characterise the Performing Rights Society (founded in 1914) as ‘a prime example’ of Streeter's ‘“ensuing bureaucratisation of copyright” that characterised the 20th century’ (at 244). For more on the history of music publishing, including the establishment of the first music collecting societies see Towse, R ‘Economics of music publishing: copyright and the market’ (2016) Journal of Cultural Economics 1Google Scholar.

13 Our account also differs from the assumptions of certain scholarship about the bureaucratisation of photographic copyright in more recent times, ie that the emergence of photographic picture libraries is a recent phenomenon. See Holland, B ‘First things about secondary rights’ (2005–2006) 29 Colum JL & Arts 295Google Scholar at 295.

14 Bellido and Macmillan, above n 12, at 232: ‘Unlike other music collecting societies in Europe, the PRS was initiated by publishers rather than composers’; Streeter, above n 11, p 309.

15 Streeter, above n 11, p 325.

16 Civil Procedure (Amendment No 2) Rules 2012, SI 2012/2208.

17 66th update to the Civil Procedure Rules 1998.

18 Initially, the limit was £5,000 but on 1 April 2013 it was increased to £10,000 by the 60th update to the Civil Procedure Rules 1998.

19 R Jackson Review of Civil Litigation Costs: Final Report (TSO, December 2009) (hereafter Jackson Review).

20 Woolf, Lord Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (London: HMSO, 1995)Google Scholar and Woolf, Lord Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (London: HMSO, 1996)Google Scholar.

21 The IP Court Users’ Committee and the IP Lawyers’ Association were particularly acknowledged by Jackson LJ as influential in this respect: Jackson Review, above n 19, Part 5, para 1.3, p 248.

22 Jackson Review, above n 19, Part 5, para 4.1, p 255.

23 Jackson Review, above n 19, Part 5, para 1.7, p 249.

24 Jackson Review, above n 19, Part 5, paras 4.3 and 4.5, p 255.

25 I Hargreaves, Review of Intellectual Property and Growth (IPO, May 2011).

26 See also Intellectual Property Office ‘Government response to the call for evidence on introducing a small claims track into the Patents County Court’ available at http://webarchive.nationalarchives.gov.uk/20140603094433/http://www.ipo.gov.uk/hargreaves-enforce-c4e-pcc-response.pdf, p 13, para 2.8.

27 This was carried out by Sheona Burrow, above n 5. This used a court-file based methodology (following Helmers, C and McDonagh, L ‘Patent litigation in the UK: an empirical survey 2000–2008’ (2013) 8(11) Journal of Intellectual Property and Law 846CrossRefGoogle Scholar; see also Cotropia, CA and Gibson, J ‘Copyright's topography: an empirical study of copyright litigation’ (2014) 92 Texas Law Review 1981Google Scholar) to look at claims brought in the IPEC Small Claims Track between October 2012 and December 2015. This involved the negotiation of access to court files from the IPEC SCT and the extraction of anonymised data from those files through a manual review of paper court files for each claim lodged from the Court's creation in October 2012 to December 2015. It is estimated that 5% of case files were not sampled because they were not physically available for sampling, eg they were removed to a judge's desk, referred to another court or otherwise unavailable. Estimates are based on the fact that in 2015, the court began numbering court files sequentially, allowing the author to note the number of files missing at each data collection date. The principal sources of data are the pleadings – claim form and particulars of claim, any defences and replies – as well as procedural notes on case management and any orders made in the case. Email correspondence between the parties and the Court included in the file also provides valuable information, particularly where cases settle during the court process. The data collected as part of the larger empirical study relates to the dates of cases, the value of claims, court fees paid, details about the claimants and defendants, details about the claims and defences (if any), notes about court procedure, and details of outcomes through settlement or judicial determination.

28 The majority were originally issued at IPEC SCT, but some transferred from county court or from IPEC SCT multi track or IPEC SCT fast track. Two cases just concerned costs, and these are not included in the 261.

29 The other nine cases concern use in the physical world, eg printed publicity material.

30 One of these was both for damages and an account of profits; as a matter of law, a claimant is required to elect either damages or an account, though see n 81 as to some confusion caused by the inclusion of ‘any unfair profits made by the infringer’ within the ‘damages’ provision of the Enforcement Directive (Art 13(1)(a)).

31 The review was conducted by Sheona Burrow and was based on all published judgments included on Westlaw and the British and Irish Legal Information website (www.bailii.org). The latter website is understood to contain all IPEC multi track and fast track judgments (113 judgments in total) and High Court (Patents Court) judgments (a further 113 judgments). The IPEC multi track and fast track was, prior to October 2013, the Patents County Court.

32 Malcolm-Green v And So To Bed Ltd [2013] EWHC 4016 (IPEC).

33 Text to nn 47–51.

34 Sheldon v Daybrook House Promotions [2013] EWPCC 26.

35 On the number of cases transcribed, see above n 7.

36 Herringshaw v Runham 7 April 2016.

37 Examples of the latter: Herringshaw v Everton 21 August 2014; Webb v Central Media 17 July 2014; Brown v Mayoh 17 April 2014. Exceptions where substantive issues were raised: Crawley v Burda 8 January 2015, a dispute over who took the picture at an Essex dog show, ie factual issue over authorship and ownership; Stockfood v Propaganda 9 April 2015, picture library's standing to bring a claim, and factual issue over length of defendant's infringement; Doré v Hendrich 16 January 2014, factual issue over whether defendant made the post on the internet; Seaward v Foxtons 5 February 2015 and Yeats v Wright 6 March 2014, nature of previous dealings between claimant and defendant; Webb v VA Events 5 March 2015, status of corporate defendant that had since been liquidated, and personal liability of its directors/shareholders as joint tortfeasors.

38 Doré v Hendrich, above n 37, at [19].

39 For counter example: Crawley v Burda, above n 37, mobile phone photographs of people and their pets taken at Essex dog show.

40 Eg landscape photographs of Bath and Dartmoor by ‘one of the UK's leading professional landscape photographers’ who licenses his images for reproduction in books and as postcards (Croxford v Cotswold 5 November 2015 at [2]); professional sports photographs taken by a photographer who regularly publishes in daily national newspapers (Herringshaw v Everton, above n 37; Herringshaw v Runham, above n 36); aerial photographs of Manchester at night taken from a chartered helicopter using specialist equipment taken for the purposes of producing a licensing revenue (Webb v VA Events, above n 37, at [20]: ‘Mr Webb says that he knows of only one other photographer who has taken similar night time aerial photographs of Manchester’); photographs of a military aeroplane underwater at Goodwin Sands taken by a ‘professional underwater photographer’ for licensing to the press to illustrate a news story (Brown v Mayoh, above n 37, at [1]–[2]: the aeroplane was about to be lifted from the seabed by the RAF Museum, in an ‘elaborate and costly project’ (at [7]) and Clarke DJ (at [14]) described the claimant as follows: ‘He is an experienced underwater photographer. He dives to get his photographs. That is a high-risk business. He is put to the expense of going and doing these dives in various places around the world to get his photographs. That is a high-expense business’); ‘an attractive image taken by a professional photographer’ of singer/songwriter Florence Welch (of Florence and the Machine) performing in concert taken for the purposes of licensing (Sheldon v Johnson, 21 January 2016, at [10]); an image from an album cover of composer Cornelius Cardew (Walmsley v Daily Telegraph, 20 March 2014); ‘glamour photographs’ of fashion models taken ‘by a prestigious photographer’ for the purpose of licensing to magazines (Bancroft v Harries, 24 April 2014, at [1] and [6], where District Judge Hart also referred to the claimant's ‘reputation and skill as a photographer and the popularity of her work’); well known photographs of children round a camp fire and the Scottish educator Alexander Sutherland Neill taken in the 1960s that ‘many people in the public’ would recognise (Walmsley v Education Ltd, 13 March 2014, available on Westlaw 2014 WL 2194626, at [3]).

41 Gamby v Harrison 15 May 2014, which concerned a freelance professional photographer who conducted business on a commission basis. Consequently, the damages calculation was based on the photographer's daily rate – ‘what a willing photographer would have reasonably charged for the work’ – rather than a royalty basis (per Lambert DJ, at [38]).

42 Walmsley v Education Ltd, above n 40, at [17].

43 Webb v VA Events, above n 37, at [1].

44 At [6].

45 Above n 37, at [15].

46 Brown v Mayoh, above n 37, at [3], [18] and [20]. The first publication premium was calculated as a 100% uplift on the standard royalty.

47 Email dated 15 October 2016, between freelance professional photographer and Elena Cooper, replying to posting on Editorial Photographers UK website. See also Sheldon v Daybrook discussed at text to n 34, which originated as a money claim at Northampton County Court (para [8]).

48 The British Photographic Council Industry Survey of Photographers 2010: Full Results and Analysis (London: British Photographic Council, 2010) available at http://www.british-photographic-council.org/survey/2010. The survey covered 1,698 photographers, but the results were ‘filtered’ to include only the responses of ‘professional photographers and/or picture suppliers (para [0.6]); of the ‘professional photographers’, 91% were ‘freelance photographers’ (para [2.3]).

49 Ibid, para [25.3]. A reference to the use of the small claims procedure is made in the Survey at para [26.2].

50 Ibid.

51 The same correspondent pointed out that another weakness of the county court procedure was that a county court claim would fail where a substantive copyright issue was raised by a defendant (eg subsistence, ownership, infringement or defences). By contrast, these issues can be resolved by the IPEC SCT. However, as noted at text to n 37, the experience so far shows that substantive issues are in practice rarely raised in the IPEC SCT. In any event, as the case of Sheldon v Daybrook (discussed above, text to n 34) illustrates, were a county court money claim to be initiated today, the county courts would transfer the case to the IPEC SCT, which would allow the statement of claim to be amended to a claim for copyright infringement. Indeed, the review by one co-author of all IPEC SCT court files in the period 2012–2015 revealed 17 cases brought by freelance professional photographers which were started in the county courts (two as money claims online) and subsequently transferred to the IPEC SCT, including four cases in our set of transcribed judgments: review by Sheona Burrow. The transcribed cases are: Yeats v Wright, above n 37; Bancroft v Harries, above n 40; Gamby v Harrison, above n 41, and Crawley v Burda, above n 37.

52 Croxford v Cotswold, above n 40, at [47].

53 Bently, L and Sherman, B Intellectual Property Law (Oxford: Oxford University Press, 4th edn, 2014) p 283CrossRefGoogle Scholar, referring to Pasterfield v Denham [1999] FSR 168 at 180. Other cases on moral rights have also concerned changes to the work itself, eg the reduction in size and addition of colour to drawings (Tidy v Trustees of the Natural History Museum [1996] EIPR D-86) and the superimposition of rap onto a musical work (Confetti v Warner Museum [2003] EMLR 790).

54 Webb v Hope Lettings 10 July 2014 at [12]. This approach to the construction of Copyright, Designs and Patents Act 1988, s 80, requiring prejudice to the honour or reputation of the author in all cases (rather than as an alternative to showing distortion or mutilation), is consistent with that adopted in the High Court: Confetti Records v Warner Music [2003] EWHC 1274 (Ch) at [149]–[150].

55 Gamby v Harrison, above n 41.

56 The exception involved a claim for loss of profits.

57 Available at http://www.londonfreelance.org/feesguide/index.php?&section=Photography&subsect=Online+use+of+photos; http://www.gettyimages.co.uk/.

58 The claimant had requested that the defendant estate agents use his own photographs of his home for the purposes of selling his property, but, after the property was sold, the defendant used them for other sales/marketing purposes.

59 Croxford v Cotswold, above n 40, at [8] and [21].

60 The details of the order in this case can be found at paras [42], [45] and [47], [48]–[49], [50].

61 Success Photography v Tempest 21 November 2013, [6] and [7]. Clarke DJ commented that the claimant could have claimed an ‘increased licence fee’ in respect of the continuing use.

62 In Spectravest v Aperknit [1988] FSR 161 at 174, Millett J: ‘In intellectual property cases a plaintiff is concerned not only to stop exact repetition of the defendant's current activity which can be described with particularity, but to prevent fresh invasions of his rights in ways which cannot be foreseen or described exactly’.

63 Interview conducted by Sheona Burrow in July 2016 with a freelance photographer working in photography for commercial and advertising sectors.

64 Interview conducted by Sheona Burrow in July 2016 with a freelance professional photographer working in news and social affairs reportage. The same interviewee also discussed the charges imposed on infringers, with those that admitted infringement being turned ‘into a customer’.

65 Eg Webb v Central Media, above n 37, at [36]; Walmsley v Daily Telegraph, above n 40, at [7], though for a counter-example, see Walmsley v Education Ltd, above n 40, at [10] and [13].

66 See https://www.gov.uk/hmrc-internal-manuals/vat-supply-and-consideration/vatsc36100 and https://www.gov.uk/hmrc-internal-manuals/vat-supply-and-consideration/vatsc36300.

67 General Tire v Firestone [1975] FSR 273 at 278.

68 Absolute Lofts v Artisan Home Improvements [2015] EWHC 2608 (IPEC) at [11]. Art 13(1) of the Enforcement Directive, which concerns ‘damages’ awards against infringers who engaged in an infringing activity ‘knowingly, or with reasonable grounds to know’, expressly mentions that damages can be calculated by reference to ‘the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question’ (Art 13(1)(b)).

69 Exception: Gamby v Harrison, above n 41.

70 Above n 67, at 279.

71 Eg Webb v Central Media, above n 37; Webb v Hope Lettings, above n 54; Webb v VA Events, above n 37; Walmsley v Education Ltd, above n 40; Success Photography v Tempest, above n 61.

72 Eg Stockfood v Quality Garden 14 May 2015; Stockfood v Red Pub 4 September 2014. For the relationship between Stockfood and photographer, see Stockfood v Red Pub at [2].

73 Eg Doré v Hendrich, above n 37; Seaward v Foxtons, above n 37; Sheldon v Johnson, above n 40; Bancroft v Harries, above n 40; Brown v Mayoh, above n 37.

74 Text to nn 56–57.

75 Eg education initiatives are run by the Association of Photographers and Editorial Photographers UK and Ireland. A further 11 membership organisations are referred to in the survey of photographers conducted by the British Photographic Council, above n 48, para [0.1]. The collective organisation of photographers was referred to by photographers in interviews conducted by Sheona Burrow. One freelance professional photographer interviewed in May 2013 mentioned the use of online forums where photographers discussed infringement and court action.

76 Eg Croxford v Cotswold, above n 40; Crawley v Burda, above n 37; in only three of the 21 cases considered did the claimant and defendant know each other prior to the infringement.

77 Webb v Central Media, above n 37, at [21] and [33]; Webb v Hope Lettings, above n 54, at [11] and [15]; Stockfood v Quality Garden, above n 72, at [7]; Success Photography v Tempest, above n 61, at [8]; Stockfood v Red Pub, above n 72, at [40] (the rates of Getty Images and Corbis were also considered as comparators at [39]); Seaward v Foxtons, above n 37, at [25] (Corbis rates applied); Sheldon v Johnson, above n 40, at [13] (Getty rates applied); Bancroft v Harries, above n 40, at [5] and [7] (Getty and NUJ standard rates applied).

78 Stockfood v Quality Garden, above n 72, at [7]; Stockfood v Red Pub, above n 72, at [40] (the rates of Getty Images and Corbis were also considered as comparators – at [39]); Seaward v Foxtons, above n 37, at [25] (Corbis rates applied); Sheldon v Johnson, above n 40, at [13] (Getty rates applied); Bancroft v Harries, above n 40, at [7] (Getty and NUJ standard rates applied).

79 Eg Sheldon v Johnson, above n 40; Bancroft v Harries, above n 40.

80 Moral rights are actionable as breach of statutory duty: Copyright, Designs and Patents Act 1988, s 103(1).

81 In Absolute Lofts, above n 68, at [42], the IPEC multi track held that Art 13(1) of the Enforcement Directive entitles a defendant to claim a defendant's ‘unfair profits’ as an alternative to additional damages under s 97(2), whichever is greater. This approach sits uneasily with the domestic law distinction between damages and an account of profits. The confusion on this point is perhaps the result of the ‘broad sense’ in which the term ‘damages’ is used in Art 13 of the Directive (noted by the Court of Appeal in Hollister v Medik Ostomy Supplies [2012] EWCA Civ 1419 at [60]).

82 Five out of the 21 transcribed cases included claims for both non-attribution and additional damages. Only one case concerned a successful claim for damages for derogatory treatment: Webb v VA Events, above n 37, at [28], where District Judge Hart awarded 500% uplift by way of additional damages and derogatory treatment together.

83 Walmsley v Daily Telegraph, above n 40, at [15] per District Judge Hart.

84 In Flogas Britain v Calor Gas [2013] EWHC 3060 (Ch) at [136] defining ‘flagrancy’ as requiring ‘scandalous and deceitful conduct’ on the part of the defendant. In Nottinghamshire Healthcare v News Group [2002] RPC 49 at [52], it was held that deliberation included recklessness – a ‘couldn't care less’ attitude – to infringement.

85 The European Court of Justice has recently held that damages for ‘moral prejudice’ can be claimed in addition to damages calculated on a royalty basis (‘the amount of royalties or fees which would have been due if the infringer had requested’ a licence) despite the fact that ‘moral prejudice’ is not expressly mentioned in the relevant provision of the Directive (Art 13(1)(b), ECJ Case C-99/15 Christian Liffers v Producciones Mandarina SL), however this only applies to cases falling within Art 13(1), ie where the infringement was committed by a defendant knowingly or with reason to believe (ECJ 7th Chamber Case C-280/15 Irina Nikolajeva v Multi Protect at [54]).

86 100% uplift under s 77: Stockfood v Quality Garden, above n 72, at [8]. 100% uplift under s 97(2): Sheldon v Johnson, above n 40, at [15]; Webb v Central Media, above n 37, at [44]; Brown v Mayoh, above n 37, at [17]. For an exception where an unexplained figure of £1,000 was awarded, the general damages award being £360: Webb v Hope Lettings, above n 54, at [15].

87 See above n 75.

88 Ibid, at [13].

89 Herringshaw v Everton, above n 37, at [22] per District Judge Lambert; Stockfood v Red Pub, above n 72, at [32] per District Judge Lambert.

90 Webb v Central Media, above n 37, at [5] per District Judge Lambert: ‘His instructions were to use Google Images, which he understood to be free’.

91 Walmsley v Education Ltd, above n 40, at [6] per District Judge Clarke: ‘the teacher responsible for the blog post found the images on Google images without any copyright rubric upon them and believed that if those images were on Google images without a copyright notice on them that meant that they were free to use…’

92 As observed in the review of IPEC SCT Court files conducted by XXXX.

93 Webb v VA Events, above n 37 per District Judge Hart.

94 At [20]. Webb v Hope Lettings, above n 54, at [7] per District Judge Hart: ‘It is naive for anyone to believe that just because an image is available on Google copyright does not subsist in that image’. Bancroft v Harries, above n 40, at [3] per District Judge Hart: ‘he used these images which he obtained on the web, they were freely available on the web and that there was no metadata attached to them. … It is … simply not sufficient, in my view, for a defendant to say that the reasonable starting point would be that any image they come across on the internet that does not have metadata attached to it is necessarily free from copyright protection. That would be a naïve standpoint for somebody like Mr Harries operating a commercial website to take’. Walmsley v Education Ltd, above n 40, at [16] per District Judge Clarke: ‘the teacher assumed any image found on Google without a copyright notice attached would be free to use shows a shocking lack of understanding of copyright protection. … I do not think, in this day and age to look online and see what are clearly professional photographs and to say to oneself “if there is no copyright notice it must be all right for me to use them”’.

95 Merges (1996), above n 1, at 1303.

96 Ibid, 1392.

97 Ibid, 1302, 1303 and 1392.

98 Text to n 167.

99 Langford, M The Story of Photography: From its Beginnings to the Present Day (Oxford: Focal Press, 2nd edn, 1997) pp 11–16Google Scholar, 22–34 and 35.

100 25 & 26 Vic c 68.

101 Linkman, A The Victorians: Photographic Portraits (London: Tauris Parke, 1993) p 66Google Scholar.

102 Plunkett, J ‘Celebrity and royalty’ in Hannavy, J Encyclopedia of Nineteenth-century Photography (New York & London: Routledge, 2008) p 281Google Scholar.

103 Brake, L and Demoore, M Dictionary of Nineteenth Century Journalism (Gent and London: Academia Press and The British Library, 2009) pp 304–306Google Scholar.

104 Ibid, 496.

105 Ibid, 157.

106 Shorter, C ‘Illustrated journalism: its past and its future’ (1899) 75 Contemporary Review 481Google Scholar at 489. Reviewing a sample of illustrated papers for March 1899, Shorter noted that photographs outstripped the number of drawings for papers such as The Illustrated London News and Black and White: ibid.

107 Griffiths, D Fleet Street: Five Hundred Years of the Press (London: The British Library, 2006) p 145Google Scholar.

108 Ibid, pp 143–145 and 192–193; Everard, J Photographs for the Papers: How to Take and Place Them (London: Adam and Charles Black, 1914) p 12Google Scholar.

109 Griffiths, above n 107, p 145.

110 Frank Bishop, President of the Photographic Copyright Union, commenting in 1897: ‘Photographic copyright by Frank Bishop’ British Journal of Photography 23 July 1897 at 471.

111 British Journal of Photography 2 October 1891 at 626.

112 British Journal of Photography 2 October 1891 at 627.

113 ‘Photographic copyright by Frank Bishop’ British Journal of Photography 23 July 1897 at 471.

114 Ibid.

115 ‘Piracy’ British Journal of Photography 20 October 1893 at 667.

116 ‘At home: Mr Alexander Bassano of Old Bond Street’ Photographic News 27 February 1880 at 98.

117 ‘At home: W&D Downey at Ebury Street’ Photographic News 30 April 1880 at 206.

118 ‘At home: Messrs Elliott & Fry and Baker Street’ Photographic News 30 January 1880 at 50.

119 ‘The illustrated papers and copyright photographs’ British Journal of Photography 17 November 1893 at 732.

120 Ibid.

121 Ibid.

122 ‘A photographers’ copyright union’ British Journal of Photography 12 January 1894 at 20.

123 London Chamber of Commerce's Articles of Association 1897, Art 38, in ‘Papers and minutes of the photographic trade section of the London Chamber of Commerce’ held at Guildhall Library, London.

124 See above n 122, at 21.

125 Ibid.

126 Paragraph 10 of the Union's Report 22 November 1895 at ‘Photographers’ copyright union’ The Amateur Photographer 29.11.1895 361.

127 ‘Mr Gambier Bolton FZS’ The Amateur Photographer 20 December 1895 at 414.

128 ‘A photographers’ copyright union’ British Journal of Photography 12 January 1894 at 20, 21.

129 Ibid; Elliott, JJ A Few Facts Relating to Photographic Copyright (London: London Chamber of Commerce, 1894)Google Scholar.

130 ‘Photographic trade section of the London Chamber of Commerce’ British Journal of Photography 23 February 1894 at 123.

131 ‘The photographic copyright union’ British Journal of Photography 20 April 1894 at 241.

132 ‘Photographic sections, photographers’ copyright union’ British Journal of Photography 22 June 1894 at 396.

133 ‘Photographers’ copyright union’ British Journal of Photography 30 November 1894 at 765. The currency conversion into today's values is based on the Inflation Calculator on the Bank of England website: https://www.bankofengland.co.uk/monetary-policy/inflation/inflation-calculator.

134 Ibid.

135 ‘The enjoyment of copyrights’ British Journal of Photography 20 September 1895 at 593.

136 Ibid.

137 ‘The illustrated press and photographers’ British Journal of Photography 29 November 1895 at 755.

138 The Chase Act 1891 (26 Stat 1106). On this Act see Seville, C The Internationalisation of Copyright Law: Books, Buccaneers and the Black Flag in the Nineteenth Century (Cambridge: Cambridge University Press, 2006) ch 5CrossRefGoogle Scholar.

139 This was on the condition that, on or before publication in the USA or any foreign country, two copies of the photograph were delivered or deposited at the Library of Congress which had been printed from negatives made within the United States (Chase Act 1891, s 3).

140 British Journal of Photography 26 August 1898 at 546.

141 Ibid. The Photographers’ Copyright League of America was established in 1895 to defend the interests of photographers against the illustrated press. Napoleon Sarony was one of its prominent members: ‘Concerning copyright in America’ Photographic News 24 May 1895 at 333.

142 Cooper, E Art and Modern Copyright: The Contested Image (Cambridge: Cambridge University Press, 2018)CrossRefGoogle Scholar.

143 Address of Frank Bishop, the Photographic Copyright Union's President, in 1903 ‘Photographic copyright union’ British Journal of Photography 6 February 1903 at 815.

144 Ward, HS and Ward, CW Photography for the Press (London: Dawbarn & Ward, 2nd edn, 1905) pp 20–21Google Scholar.

145 ‘The illustrated press bureau’ British Journal of Photography 11 January 1901 at 17.

146 Ibid. Ward, HS and Ward, CW Photography for the Press (London: Dawbarn & Ward, 3rd edn, 1909) p 70Google Scholar.

147 Ward and Ward, above n 146, pp 28–29.

148 ‘Some aspects of photographic copyright’ British Journal of Photography 1 September 1905 at 683. Henry Snowden Ward's guide to press photographers states: ‘A press photograph ‘must tell its story plainly. Its value depends on this and on the importance of the theme of which it treats. A bad print of a good subject may be worth pounds where the best print of a subject without interest will not be looked at by any editor’: Ward and Ward, above n 146, p 25. Also: ‘real pictorial work gets very little appreciation in the daily illustrated press… Pictures that are news, and that tell their own tale, are what are demanded, even when devoid of all pictorial character’: Ward and Ward, above n 146, p 27.

149 Ibid, pp 29–30.

150 Ibid, pp 28–29.

151 Cooper, E Art and Modern Copyright: The Contested Image (Cambridge: Cambridge University Press, 2018)CrossRefGoogle Scholar.

152 Streeter, above n 11, p 312.

153 The nature of statutory penalties was discussed by Wright J in Sherras v De Rutzen [1895] 1 QB 918, 922 as ‘acts which… are not criminal in any real sense, but are acts which in the public interest are prohibited under penalty’.

154 Ex pe Beal (1868) LR 387, 395 per Blackburn J, Mellor and Lush JJ concurring.

155 Melville v Mirror of Life [1895] 2 Ch 531. Melville concerned the unauthorised reproduction of a photograph of the athlete George Crossland in a weekly paper The Mirror of Life. Kekewich J awarded a single penalty of 5l, rejecting the claimant photographer's submission that a penalty at the statutory maximum – 10l – should be awarded for each of the 8,000 unauthorised copies made (532–533 and 537). Kekewich J considered that, as the defendant had published the photograph on the direction of the sitter, the defendant had ‘not acted in a way to explore themselves to any serious penalty’ (at 537).

156 This approach, followed in Ellis v Horace Marshall and Nicholls v Parker, discussed below, is explained in a later case of Hildesheimer v WF Faulkner (1901) 70 LJ Ch 800 at 802–803, which did not concern the illustrated press; the judges in Hildesheimer (a case in which the defendant, who reasonably believed that it owned copyright in the works in question, printed over a million infringing copies as small pictures included with packets of cigarettes) instead favoured the approach of assessing penalties ‘by some relation to the offence’ or what ‘in justice ought to be awarded’ even if the result was that each penalty was only a fraction of a single coin of the realm: ibid at 803, per Collins LJ, 804 per Romer LJ).

157 The calculation of penalties in Ellis – as a farthing per infringement – appears in the report of a subsequent case, Hildesheimer v WF Faulkner, above n 156, per Collins LJ at 803.

158 Ellis v Horace Marshall (1895) LJQB 757 at 759. There is no detail given as to the number of unauthorised copies printed by The Ludgate Monthly. The leniency of the Court as regards damages, is perhaps explained (as in Melville) by the fact that the photograph had been published on the directions of the sitter.

159 Nicholls v Parker (1901) Times, 8 May, p 3.

160 The case was subsequently appealed on quantum and was ordered to be sent back to Wright J for reconsideration. However, there is no report of a further hearing: Nicholls v Parker (1902) 18 TLR 459. The currency conversion into today's values is based on the Bank of England Inflation Calculator, above n 133.

161 Text to n 90–94.

162 Text to n 122 and n 75.

163 Merges (1996), above n 1, at 1303.

164 Thomas Streeter connects bureaucratisation with developments in broadcasting copyright in the 1920s (above n 11) and Bellido and Macmillan see the emergence of similar trends in music copyright as stemming from changes introduced by the Copyright Act 1911 (above n 12), discussed at text to nn 12–14. Our account also differs from the premises of scholarship about the bureaucratisation of photographic copyright in more recent times, assuming the emergence of picture libraries to be a recent phenomenon: Holland, above n 13, at 295.

165 Merges (1996), above n 1, at 1392: ‘…liability rules entail “collective valuation”… Property rules are the opposite: strictly individual valuation with prices set by the right holder alone’. Also Merges, ibid, at l303, referring to licences offered by collecting societies: ‘The generality of these policies merits the label “rule” as distinguished from mere “terms” of a specific bilateral contract’. See also text to nn 1–4.

166 Streeter, above n 11, p 325.

167 Eg Doré v Hendrich, above n 37, at [16].

168 Art 11(1), Proposal for a Directive on Copyright in the Digital Single Market, COM(2016) 593, of 14/9/2016, providing ‘publishers of press publications’ with the rights of reproduction and communication to the public (under the Information Society Directive, 2001/29/EC Art 2 and 3) in respect of the ‘digital use of their press publications’.

169 Directive 2014/26/EU, Recital 2.

170 Directive 2012/28/EU, Arts 5 and 6(5).

171 Eg Dusollier, S and Colin, C ‘Peer-to-peer file sharing and copyright: what could be the role of collective management?’ (2010–2011) 34 Colum JL & Arts 809Google Scholar; Giblin, R ‘Reimaging copyright's duration’ in Giblin, R and Weatherall, K (eds) What if We Could Reimaging Copyright? (Canberra: ANU Press, 2017) p 23CrossRefGoogle Scholar; Handke, C, Balazs, B, Vallbé, J-J ‘Going means trouble and staying makes it double: the value of licensing recorded music online’ (2016) 40 Journal of Cultural Economics 227CrossRefGoogle Scholar; Netanel, NW ‘Impose a noncommercial use levy to allow free peer-to-peer file sharing’ (2003) 17 Harv JL & Tech 1Google Scholar; Lemley, above n 1; Oliar, above n 1. For pre-internet debates see Reichman, above n 1; cf Merges (1996), above n 1.