IP right infringement by re-posting of photographs on social media – assessing damages, calculation of interest and costs recovery in the IPEC

Background

The claimant, Andrew Tipping, co-created the automotive magazine Max Power and shot certain photographs originally produced for publication in the magazine. Mark Smith, the defendant, photographed pages from hard copy issues of the magazine dating from the 1990s to the early 2010s. Reproducing around 31,000 of the photographs, between 2018 and 2021 he posted them on Facebook and Instagram, together with corresponding text, under the name "maxpowerreunion". 

Mr Smith amassed tens of thousands of followers on social media, resulting in the promotion and launch of "The Reunion Show" in 2021 (an unofficial Max Power reunion event). Further events followed in 2022, 2023 and 2024, each attracting 3,000 to 4,000 attendees. Mr Smith continued to use the photographs to promote the 2024 show after the claim was issued. 

IPEC gave summary judgment in favour of Mr Tipping when Mr Smith admitted in his pleadings that these acts amounted to copyright infringement. This decision concerns quantum of damages payable.

The decision 

• The key question was: "Had the parties been a willing licensor and willing licensee, what reasonable royalty / notional licence fee would the parties have agreed in a hypothetical negotiation for the Defendant's use of the Photographs, taking account of their respective bargaining positions?"
• IPEC based its quantum decision on the test summarised in Original Beauty Technology v G4k Fashion Limited^[1] which noted (amongst other things) that: (i) damages are compensatory (and not designed to punish the defendant); and (ii) the burden of proof rests on the claimant.
• Mr Tipping had evidenced that he was the source of 90% of the images and feature articles in the magazine, that he retained the copyright in the relevant images, and that he had licensed and published his work in magazines around the world for many years.
• He was awarded £56,850 (the full amount sought), plus interest at 2.5% above base rate and all pursued costs except where they exceeded the individual stage cap.
• Damages were calculated on a licence fee of £37.50 per post on each of the posts on Instagram and Facebook (£37.50 representing 1/8th of Mr Tipping's daily feature rate of £300 and being the amount he charges for use of his photographs by third parties).

Takeaways

• While not directly monetised, Mr Smith's social media posts were used to build a following and created revenue generating opportunities. Reasonable parties to a licence negotiation would consider the use of photographs on Mr Smith's social media channels as commercial use. 
• Mr Tipping worked with the National Union of Journalists (NUJ) to assess the losses arising from the infringing use. The initial NUJ methodology was based on a charge per image, resulting in a substantially higher licence fee sum. However, this was revised to a charge per post methodology by Mr Tipping "to ensure that the total sum is compensatory not punitive".  
• Mr Smith's argument that there was no reasonable basis to charge double for two social media sites was rejected by the IPEC. If there was value in maintaining both social media accounts, all posts from both sites were subject to the notional licence fee. 
• The terms on which a copyright owner chooses to license their work is a matter for their discretion. Mr Smith's argument that he had obtained royalty-free licences from other Max Power photographers - and that the relevant licence fee should therefore also be zero - was irrelevant (and the judge was not convinced that those licences covered his commercial use in any event). 
• Mr Smith's overall position that no fee was payable (and damages should be zero) and lack of willingness to counter Mr Tipping's calculation by providing an alternative licence fee was considered "unattractive" by the IPEC. 
• IPEC remains an attractive option for claims of relatively low value and complexity and/or those with limited resource, but the IPEC's costs cap remains a key consideration. While it can help to keep costs proportionate, it can also inhibit the costs recoverable by the successful party.
• The IPEC will only exercise its discretion to lift the costs cap in "truly exceptional" cases. Despite some unreasonable behaviour by Mr Tipping in this case, the judge declined to lift the applicable cap.  This is: Tipping v Smith [2026] EWHC 1855 (IPEC)

This is: Tipping v Smith [2026] EWHC 1855 (IPEC) 

1. Original Beauty Technology et Ors v G4k Fashion Limited [2022] F.S.R. 71