Damages for flagrant infringement: Nottinghamshire Healthcare NHS Trust v News Group Newspapers

A recent copyright infringement by the Sun has prompted further judicial speculation on the nature of the additional damages which can be awarded where an infringement is “flagrant”.

The case concerned the Sun’s use of a photograph of a patient at Rampton Hospital called Laith Alani. Alani, the killer of two consultant plastic surgeons, attracted the attention of the Sun when he went on an escorted rehabilitation trip which included a visit to McDonald’s. Following an article in the Sun under the headline “DOUBLE KILLER POPS OUT FOR A MCDONALD’S – Outrage over jaunt for psycho” a McDonald’s worker named in the Sun’s article received a terrifying letter from Alani. The photograph in issue was used by the Sun to illustrate a follow up article under the headline “TERROR OF BURGER GIRL SENT LETTER BY KILLER – He met her on Rampton outing”.

The photograph suited the article very well because in it Alani’s left eye appeared wider open than the right with the pupil surrounded entirely by white. Alani was described in the article as a “wild-eyed killer”. The photograph belonged, however, to the claimant and had formed part of Alani’s medical notes, before it was stolen.

Mr Justice Pumfrey did not accept the Sun reporter’s explanation of how the photograph came to be published in the Sun, finding that the reporter knew that it came from Rampton and that he used the photograph deliberately, either knowing that the hospital would object to its use or not caring whether it would object or not. The judge had no doubt that this was a flagrant infringement of the claimant’s copyright.

Section 97(2) of the Copyright, Designs and Patents Act 1988 allows the court to award “such additional damages as the justice of the case may require” where an infringement is flagrant. There has been much learned speculation over the years whether additional damages can be “punitive” or “exemplary” (amounting in effect to a fine payable to the claimant) or whether they are “aggravated” or “compensatory”. Mr Justice Pumfrey did not consider that they were punitive. However, they could contain an element of “restitution” having regard to the benefit gained by the defendant from the infringement, which would be appropriate where the normal compensation to the claimant would leave the defendant still enjoying the fruits of his infringement.

Having heard expert evidence as to the going rate for the Sun’s use of the photograph the judge concluded that £450 would be the normal infringement damages based on what a willing copyright owner could have been expected to negotiate with the newspaper (and erring on the high side). Having regard to the flagrancy of the infringement and other factors, most importantly the upset caused at Rampton by the use of the stolen photograph, the overall award of damages was increased to £10,000.

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