Background to [2025] EWHC 1855 (IPEC)

The claimant, Andrew Tipping, was the photographer and co-creator of Max Power magazine. He brought copyright infringement proceedings against Mark Smith, who had used various photographs from the magazine in 1,432 social media posts on “maxpowerreunion” accounts. The claimant contended that the posts allowed the defendant to gain followers in order to promote and launch unofficial Max Power reunion events. Summary judgment on liability was granted (following the defendant’s admission of infringement) and the court was left to determine quantum.

Damages

Her Honour Judge Melissa Clarke had to consider what reasonable royalty or notional licence fee would the parties have agreed, had they been a willing licensor and licensee negotiating a licence for the use of the photographs, bearing in mind their respective bargaining positions. The court considered the “user principle” following Henderson v All Around the World Recordings and also noted that whilst damages are to be assessed liberally, their object is to compensate claimants, not punish defendants.

The parties’ positions

The claimant relied on his usual charging structure. He calculated a licence fee of £37.50 per post using his photographs (1/8 of his daily feature rate of £300), so the total notional licence fee for the defendant’s 1,432 posts would be £56,850. In calculating the fee, the claimant was assisted by the National Union of Journalists (NUJ), which was considered to have expertise in negotiating on behalf of photographers and a good understanding of the market.

The defendant argued that £56,850 was excessive. Among other things, he noted that day rates for automotive photographers on Glassdoor were typically in the £100-£150 range, that there was no reasonable basis to charge separately for use on two social media sites and that the proposed post fee would not have been agreed in a hypothetical negotiation. The defendant further argued that his bargaining position had not been taken into account in the calculation, that other Max Power photographers had given him royalty-free licences, and that his use of the photographs was non-commercial because the posts were not monetised.

Outcome 

• The judge sided with the claimant and awarded £56,850 in damages, based on a notional fee of £37.50 per social media post, finding that:
• The defendant’s use was commercial in nature. Whilst the social media accounts were not monetised, they were used to build an audience which promoted revenue-generating reunion shows and merchandise.
• Each post could attract a separate fee. The defendant clearly found value in maintaining two social media sites to achieve his aims, so the notional parties in a hypothetical negotiation would consider all posts to be subject to a separate licence fee (regardless of platform).
• The claimant’s particular skills were relevant. Evidence showed that third parties commissioning his photography considered him to have special skills justifying fees considerably higher than the average day rates raised by the defendant. 
• The terms of the defendant’s alleged royalty-free licences were not known. One photographer stated that the photographs could be used for non-commercial purposes, however, the defendant’s use was clearly commercial in nature. The defendant also accepted that whether a photographer gives a royalty-free licence is a matter for their discretion.
• The claimant’s proposed feature rate was an appropriate benchmark. The photographs in the posts were taken from works commissioned and paid for at a feature rate and 1/8 of a day rate is reasonable value for a post which could include multiple photographs (for example, in a “carousel”). A discount was already built into the claimant’s calculation because the hypothetical licence was charged per post, not per photograph. The £37.50 fee per post, derived with the assistance of the NUJ from the claimant’s actual charging structure was therefore considered a reasonable market proxy for a hypothetical licence negotiation. 
• The claimant (being the photographer of 90% of the photographs in Max Power magazine) was in a strong bargaining position to sell a licence to someone like the defendant, who “needed the Max Power photographs to inspire nostalgia and drive social media followers and interest in his commercial events” and whose bargaining position was weak.

Interest 

Following Geofabrics v Fiberweb, the judge noted that interest compensates claimants for “being kept out of money which ought to have been paid to them rather than as compensation for damage done or to deprive defendants of profit they may have made from the use of the money”.

The court considered that a person with the general attributes of the claimant (who runs a small business from semi-retirement, part time) would have a lower borrowing requirement than an active small business, and awarded interest at 2.5% above base rate (£19,741.67 in total).

Costs

The judge found no reason to depart from the general rule that the unsuccessful party will be ordered to pay the successful party’s legal costs, pursuant to CPR 44.2(2), subject to the IPEC’s specific costs and scale caps.

The claimant asked the court to exercise its discretion to lift the IPEC caps (which the court can do in “truly exceptional” cases, according to Link Up Mitaka v Language Empire). He argued that:

• he had beaten the defendant’s last settlement offer and his own open offer to the defendant, which had not been acknowledged;
• the defendant acted unreasonably (for example, by arguing that damages would be zero, advancing “hopeless” arguments and making personal criticisms of the claimant); and
• because the defendant filed a CPR 32.9 notice, which was not pursued at the quantum trial, the claimant had to incur additional costs and wasted effort.

The judge noted that, whilst aspects of the defendant’s conduct could be criticised, and although the defendant would have been advised, in hindsight, to accept the claimant’s offer, none of those matters got the case near the threshold of exceptionality required to justify a departure from the IPEC costs caps.

Turning to the summary assessment (within the applicable caps), the judge did not reduce the sums sought by the claimant and awarded £58,075 in costs.

Key takeaways

Tipping v Smith demonstrates the importance of submitting evidence of actual licensing practices when damages are assessed on the basis of a hypothetical bargain. An established charging structure may be considered a persuasive market benchmark, particularly where it is supported by relevant industry expertise.

The decision also serves as a reminder that costs caps (which limit exposure and offer a degree of certainty to claimants and defendants alike) are key features of litigating in the IPEC, and that departure from these caps requires exceptional circumstances.

Finally, the case also illustrates that damages inquiries, which are relatively uncommon in IP litigation in the UK, can give rise to significant evidence and valuation issues after liability has been established. Parties should accordingly consider the potential costs and evidential burden when assessing litigation strategy or exploring settlement options.

Case details at a glance

Jurisdiction: England & Wales
Decision level: IPEC
Parties: Andrew Tipping v Mark Smith
Date: 22 July 2026
Citation: [2025] EWHC 1855 (IPEC)
Decision: dycip.com/2025-ewhc-1855-ipec