Andrew Tipping v Mark Smith [2026] EWHC 1855 (IPEC)

This judgment deals with the quantum of damages payable following a finding that Mr Smith (the Defendant) had infringed Mr Tipping’s (the Claimant) copyright in various photos published in Max Power, an automotive magazine which was published from 1991 to 2011. The judgment serves as a helpful reminder of the key principles for assessing damages in intellectual property claims.

Between 2018 and 2021, the Defendant used an estimated 31,000 photographs belonging to the Claimant across 1,432 social media posts under the name ‘maxpowerrreunion’. Each post contained between two and ten of the Claimant’s photographs.

Summary judgment was handed down on 22 February 2025 at the Case Management Conference following the Defendant’s admittance that they had infringed the Claimant’s copyright.

The quantum trial was centred on a single issue – 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.

We set out our key takeaways below.

• The general rule is that damages should be compensatory, not punitive. A claimant should not be seeking to profit off an award of damages, instead they should be seeking to return themselves to the position that they would have been in had the infringement not occurred.
• The burden is on the claimant to justify their damages. The Claimant in this instance was able to provide details of the methodology used to calculate his damages, along with valuable supporting evidence including historic invoices, his agreement with the original publisher of Max Power and his terms with the new publisher. Consequently, his proposed rate formed a legitimate basis for the hypothetical negotiation.
• The burden is on the claimant to justify the amount of damages, however defendants should not neglect supporting evidence for their own case. The Defendant in this case submitted that other Max Power photographers had given him a royalty-free licence to use their photographs for non-commercial purposes but no documents or messages evidencing these discussions were disclosed. The Court was therefore unconvinced that this meant the Claimant would have granted the Defendant a royalty-free licence in the hypothetical negotiation.
• The commercial benefit from infringement can be indirect. The Defendant argued that he had not profited from the social media posts and the social media accounts were personal rather than commercial in nature. However, the social media posts containing the photographs enabled the Defendant to gain followers and promote ticketed events and merchandise which he subsequently profited from.
• Bargaining powers should be realistic. The Defendant argued that the Claimant’s licence fee negotiations did not consider that the Defendant could have taken the photographs themselves by attending car shows. However, the Defendant had chosen to use the Claimant’s photographs to create a sense of nostalgia surrounding the Max Power magazine. The Defendant could not have achieved this himself using new photographs.