A fabulously happy Northamptonshire couple are taking soft drinks giant Britvic to court, claiming the J2O maker used an image of their wardrobe 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 papers that Britvic, which makes Robinsons squash and Tango, used a photo of the house taken by Mrs Robinson in 2017 to promote a competition offering a “unique summer hangout” as its prize. This image is said to have appeared on the company’s contests page and in advertisements between July and October last year.
The couple are asking the court to declare that Britvic has infringed their copyright and to award damages, including £6,552 in lost profits and a sum reflecting the fees they would have charged for using the image. A hearing on the claim is yet to take place.
Britvic has admitted it used the image but denies it needed the Robinsons’ permission.
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 to enforce photographers’ rights have been democratized by the UK Intellectual Property Court’s small claims track, which provides a low-cost way to stop infringement and obtain damages. This means claimants can bring a claim with much less risk in terms of adverse costs awards,” he said.
IPEC’s small claims track deals with intellectual property disputes worth £10,000 or less, with short, informal hearings where the loser usually pays the winner’s costs, a structure designed with individuals and small firms in mind.
Connor warns that businesses using unlicensed images face increased exposure. “Online search tools make finding infringing content really easy so anyone using an image without a license risks a claim from one of the many ‘licence compliance’ organisations, which often demand somewhere in the region of £500 to £1,000 per image.”
As for Britvic’s defense, he’s not sure. “Firstly, Britvic is asking the Robinsons to prove that they have title to the image, which should not be too difficult for the plaintiffs, and secondly that authorization to use the image was not required. Both of these defenses seem unlikely to succeed. Since Britvic agreed to use the image, it is impossible to see how it has any chance of showing that the plaintiff needed authorisation;10 it was not copyrighted.”
What makes the claim different, Connor said, is how the Robinsons structured their losses. “It appears that the claimants are seeking compensation related to the underlying business depicted in the photo rather than a license fee to use the photo. The plaintiffs will say that since they do not provide photos for a living, unlike professional photographers, there is no license fee, so the claim must be related to the injury to their eye care business. This is where Britntuvic can best make a claim in protecting the photos. What the Robinsons want but ultimately Britvic will have to pay something to the Robinsons.
Under the Copyright, Designs and Patents Act 1988, copyright arises automatically when an image is taken, with no registration required, which is why situations like this catch big brands.
For small companies, this case cuts both ways. Owners of flash and other image-driven businesses should take heart that the courts offer a truly affordable route to enforcing their rights. Equally, any business that borrows images for marketing, however innocently, should treat this as a reminder that protecting intellectual property, and respecting other people’s, is not a nice thing to have. As we’ve previously reported, product and IP protection is important even for the smallest business.
