|Wearing nothing but a white fur coat, Merpel|
always thought she was quite daring enough:
fur and latex rubber really don't go ...
When Ms Delves-Broughton complained, the House of Harlot promptly took down the second image. Ms Delves-Broughton then commenced proceedings for (a) copyright infringement and (b) derogatory treatment of her work. The House of Harlot responded by arguing that (a) it had a licence to use image by virtue of subsequent oral discussions between the model and Ms Delves-Broughton and (b) the changes it made to the image did not constitute derogatory treatment.
Douglas Campbell decided in favour of Ms Delves-Broughton on both claims. In respect of the claim of copyright infringement, he found that it was inherently implausible that Ms Delves-Broughton and the model had a discussion during the shoot to the effect that the House of Harlot was granted a licence to use the image. He was critical of the credibility of the model, particularly as her oral evidence (that a licence to the House of Harlot was granted) went further than her witness statement (which reiterated the understanding outlined in Ms Delves-Broughton’s letter outlining use of the image). He preferred the evidence of Ms Delves-Broughton and found that she had granted no such licence to the House of Harlot.
On the issue of damages for infringement, the fact that the image had appeared on eight pages of the website did not mean that there were eight uses for damages purpose. the judge stated that there had only been a single use: on the website. He followed the guidelines set out in the National Union of Journalists and awarded £675 for the infringement claim.
In respect of the claim of derogatory treatment of the work, Douglas Campbell noted that considerable time and effort had done into the composition of the image and that it had been important for the forest to appear for artistic reasons. Accordingly, he found that the changes amounted to distortion, but not mutilation, and were not prejudicial to Ms Delves-Broughton’s honour or reputation. Nonetheless, there was a distortion and therefore derogatory treatment of the work.
On the issue of damages for derogatory treatment, taking everything into account, the court awarded £50 damages. Normally the primary remedy in such cases was an injunction, but that remedy was inappropriate in the present proceedings as the House of Harlot had already removed the photograph from its website.
The IPKat and Merpel ask: has anyone been able to get their paws on a judgment or statement of reasons?