This post was originally published on this site.
A Northamptonshire couple who run a fairytale-style glamping retreat are taking soft drinks giant Britvic to court, claiming the J2O maker used a photograph of their cabin without permission to promote a national competition.
Amanda and David Robinson, who rent out the Magic Mushroom Cabin in the grounds of their home in Dodford, allege in High Court documents that Britvic, which also makes Robinsons squash and Tango, used an image of the cabin taken by Mrs Robinson in 2017 to promote a competition offering a “unique summer hangout” as its prize. The photograph is said to have appeared on the company’s competitions page and in advertising between July and October last year.
The couple are asking the court to declare that Britvic infringed their copyright and to award damages, including £6,552 for lost profits and a further sum reflecting the fee they would have charged for use of the image. A hearing in the claim is yet to take place.
Britvic has admitted using the photograph but denies that the Robinsons’ authorisation was required.
Iain Connor, intellectual property partner at national law firm Michelmores, says the case is a sign of how accessible copyright enforcement has become for small claimants.
“Claims enforcing photographers’ rights have been democratised by the small claims track of the UK’s Intellectual Property Enterprise Court, which provides a low cost route to stop infringement and get damages. This means claimants can bring a claim with very little downside risk in terms of adverse costs awards,” he said.
The IPEC small claims track handles intellectual property disputes worth £10,000 or less, with short, informal hearings in which the losing party seldom pays the winner’s costs, a structure designed with individuals and smaller firms in mind.
Connor warns that businesses using unlicensed images face growing exposure. “Online search tools make finding infringing content really easy and so anyone using an image without a licence is at risk of a claim from one of very many ‘licence compliance’ organisations, which usually demand somewhere in the region of £500 to £1,000 per photo.”
As for Britvic’s defence, he is unconvinced. “First, Britvic is asking the Robinsons to prove that they have title to the photo, which should not be too difficult for the claimants, and second that authorisation to use the photo was not required. Both defences seem doomed to fail. Since Britvic admits using an image, it is impossible to see how it has any chance of demonstrating that the claimant’s authorisation was not required; this is copyright 101.”
What sets the claim apart, Connor says, is the way the Robinsons have framed their losses. “It appears that the claimants want compensation relating to the underlying business featured in the photo rather than a licence fee for the use of the photo. The claimants will say that as they don’t licence photos for a living, unlike professional photographers, there is no benchmark licence fee for the use, and so the claim must relate to the harm to their glamping business. This is where Britvic might do a little better in defending the ‘quantum’ of the claim at the level demanded by the Robinsons. However, ultimately Britvic will have to pay something to the Robinsons.”
Under the Copyright, Designs and Patents Act 1988, copyright arises automatically when a photograph is taken, with no registration needed, which is precisely why cases like this catch big brands out.
For small firms, the case cuts both ways. Owners of glamping businesses and other image-led ventures should take heart that the courts offer a genuinely affordable route to enforce their rights. Equally, any business borrowing images for marketing, however innocently, should treat this as a reminder that protecting intellectual property, and respecting other people’s, is not a nice-to-have. As we have reported before, brand protection and IP matters for even the smallest enterprise.
