Reposting old photographs cost him £134,666: the lessons in Tipping v Smith

Mark Smith photographed pages of his own back copies of Max Power magazine on his mobile phone, lying open on his sofa and carpet, and posted the images to Facebook and Instagram. He did that 716 times on each platform between 2018 and 2021. The accounts were in the name “maxpowerreunion”. They were not monetised. He described it, in effect, as posting for fun.

On 22 July 2026 the Intellectual Property Enterprise Court ordered him to pay £134,666.67. That breaks down as £56,850 in damages, £19,741.67 in interest and £58,075 in costs. The judgment is Tipping v Smith [2025] EWHC 1855 (IPEC), a decision of Her Honour Judge Melissa Clarke.

It is a short judgment on a narrow question of quantum (damages due). Almost every argument the defendant ran is an argument I have heard clients come up with, and sometimes a good lawyer needs to say no we’re not running that..

Paying for a photograph does not mean owning it

Andrew Tipping co-created Max Power in 1991 and took around 90% of the images in it. EMAP, and later Bauer Media, commissioned and paid him. He was paid between £300 and £1,000 per feature. Despite all of that, he kept the copyright. His agreement with EMAP licensed the photographs for single use in Max Power magazine only, and provided that if the publisher wanted to reuse them, or license them to sister titles, a further fee was payable.

So the publisher who commissioned the shoot, paid the invoice and printed the pictures did not own them. Neither, obviously, did a reader who bought the magazine off the shelf.

This is the default position under UK copyright law and it catches businesses out constantly. If you commission a photographer, a designer, a videographer or a copywriter as an independent contractor, copyright in what they produce belongs to them unless your written contract says otherwise. Paying an invoice buys you whatever licence the contract gives you, and nothing more. If your contract is silent, you may find your licence is far narrower than you assumed, and that reusing the material on a new website, in a new brochure or across social media falls outside it.

The fix is cheap and boring: get an assignment of copyright, in writing and signed, or at minimum an express licence broad enough to cover every use you can foresee. Do it at the point of engagement, when you have commercial leverage, not three years later when you need it.

(Incidentally, you see this after the event fixing a lot when selling businesses).

“It was just my personal social media” is not a defence

Smith argued that his accounts were personal, were never monetised, and that his use was therefore non-commercial. The court did not accept it, and the reasoning is worth understanding because it applies to a lot of small business marketing.

The judge pointed to the account handles, which used “maxpowerreunion” rather than his own name. She pointed to an email he sent Bauer Media in January 2021 seeking a licence for the Max Power logo, in which he described himself as running a page “based on your highly successful magazine”. She pointed to his admission in cross-examination that by then, he was already selling merchandise and promoting his first event. And she pointed to his acceptance that he could not have run the event at all without the social media following, and that the posts built that following.

The conclusion is set out plainly in the judgment: even if the accounts were not directly monetised, the posts were used to build an audience which subsequently promoted revenue-generating events and merchandise, and reasonable parties to a licence negotiation would regard that as commercial exploitation.

If you are using someone else’s content to build an audience that you later sell to, that is commercial use. The absence of a paywall, an advert or a sponsorship deal on the account itself does not change the analysis.

Damages are not calculated on what you made

Smith’s first event produced a profit of £4,961 on tickets and merchandise. He ended up paying more than twenty-seven times that in damages alone.

That is because damages here were assessed on the user principle. The question is not what the infringer earned. It is what a willing licensor and a willing licensee, in the positions of these two parties, would have agreed as a licence fee in a hypothetical negotiation. Tipping’s figure was £37.50 per post, being one eighth of a £300 daily feature rate, applied to 1,432 posts.

The court accepted it. The feature rate was an appropriate benchmark because the photographs came from commissioned features. A one-eighth rate was reasonable for a post that might contain one photograph or might contain ten. The judge also noted that pricing per post rather than per photograph already built in a substantial volume discount, given the claimant estimated around 31,000 photographs were reproduced on each platform.

The practical lesson is that your profit margin is not your exposure. If you use fifty images you had no right to use, your liability is driven by what a licence for those fifty images would have cost, however little you made from them.

A bargaining position has to be a real one

Smith argued that in any hypothetical negotiation, he held cards: he could have gone to car shows and taken his own photographs, and three other Max Power photographers had given him permission to use their images for free.

The judge rejected both. On the first, she found it simply not realistic that trailing around car shows taking amateur snapshots would achieve the same effect, given his own admission that he needed Max Power photographs specifically to generate nostalgia. On the second, he had disclosed no documentation for the free licences, and the one email in evidence, from a photographer called Mr Dimbleby, expressly said there would be no charge “if it is not for commercial purposes”. Since the court had found the use was commercial, that permission did not cover what he actually did.

Two things follow. Permission from one rights holder is not permission from another, and a free licence given for personal use does not stretch to commercial use. If someone gives you permission, get it in writing and read what it actually says about scope.

Your own emails and messages will be read back to you

The email to Bauer Media asking for a logo licence did more damage than anything else in the case. It established, in Smith’s own words, that he was running a Max Power branded page, and Bauer’s response, quoting £2,500 plus royalties and warning about trade mark infringement, showed that a sophisticated rights holder regarded him as trading.

He then told the court he had not started a Max Power reunion show and that it was “about the modified car scene”. The judge described that as argumentative and inconsistent with his own pleaded case, his email and his admissions. Once a witness loses credibility on one point, the rest of their evidence tends to go with it. She found him “a less than satisfactory witness”.

Records matter, and so does having evidence rather than opinions

Tipping came to court with invoices showing his feature rates, his original agreement with EMAP, his renegotiated Bauer terms, evidence of commissions for clients including Lego, and screenshots from which he calculated the scale of infringement. The judge found him straightforward, credible and reliable, and accepted essentially all of it.

Smith kept no record of the posts he had made and later deleted. He disclosed no paperwork for the free licences. His evidence about photography turned out, in cross-examination, to have come from conversations with his son and some friends. His evidence on day rates came from Glassdoor and an ONS average, which the judge dismissed as irrelevant to what this photographer actually charged.

Where one side has documents and the other has recollections, the documents win.

Do not run a case of zero, and do engage with offers

Smith’s position was that no fee would have been agreed at all and damages should be nil. He never put forward an alternative figure. The judge expressly recorded that he had not sought to counter the claimant’s calculation with any alternative licence fee, and that fed directly into her acceptance of the claimant’s number.

If you are defending a quantum claim you think is inflated, the answer is to put a credible alternative figure in front of the court, supported by evidence. An all or nothing defence leaves the judge with only one number to work with.

The offers position was worse still. Smith’s last offer, in January 2025, was £10,010 including interest. Tipping beat that many times over. Tipping himself had made an open offer after the case management conference to settle at £45,000 in damages plus £35,000 in fees, a total of £80,000, which was not even acknowledged. He ended up with £134,666.67. Ignoring an offer is a decision with a price attached.

Interest, and why delay is expensive

Interest added £19,741.67, more than a third of the damages again. The claimant argued for 3% over base rate. The judge settled on 2.5%, reasoning that a part-time, semi-retired photographer would have a lower borrowing requirement than an actively trading small business, and ran it from November 2019.

The point for business owners is that infringement which sits unresolved for years accrues interest across the whole period. Dealing with a letter of claim quickly is almost always cheaper than dealing with it slowly.

The IPEC costs caps cut both ways

This is the part I would want a client to understand before deciding how hard to fight, particularly in the Intellectual Property and Enterprise Court (IPEC).

IPEC caps recoverable costs at £60,000 for liability and £30,000 for an assessment of damages, with individual caps on each stage of the proceedings. Tipping incurred a little over £80,000 in costs before VAT and recovered £58,075 including VAT. He won outright, beat every offer, and was still meaningfully out of pocket.

He asked the court to lift the caps, pointing to the defendant’s hopeless arguments, his personal criticisms of the claimant, his unanswered offer and a notice challenging the authenticity of invoices which was then not pursued at trial. The judge refused. The test is whether a case is “truly exceptional”, because the caps are a key feature of IPEC designed to facilitate access to justice, and she did not consider these matters came near that threshold either alone or together.

So the caps protected a defendant who had behaved poorly. That is the trade-off IPEC makes, and it means a claimant with a strong case should still expect to fund part of it themselves.

What to do about it

None of this is complicated. It is mostly housekeeping:

• Audit the images, video and copy on your website, socials and marketing materials, and identify where each item came from.
• For anything commissioned, check the contract. If it does not assign copyright to you or grant a licence wide enough for what you are doing, fix it now.
• Treat permission as scope-limited. Get it in writing and check whether it covers commercial use, social media and the duration you need.
• Assume that content used to build an audience you later monetise is commercial use, whatever the account looks like.
• Keep records of what you posted, when, and under what permission.
• If a letter of claim arrives, take advice early, engage with offers, and do not respond with a bare denial and a figure of zero.

A closing thought

One detail is easy to miss. Smith continued infringing for a two-month period in 2023, after the claim had been issued, to promote his 2024 event, by which time he was operating through a company. He was still sued personally, and the incorporation did nothing to shield him from what he had already done.

It is also worth noting what was not in issue. The single question before the court was the notional licence fee. There was no separate claim for additional damages for flagrancy under section 97(2) of the Copyright, Designs and Patents Act 1988. The £56,850 was purely compensatory. On different facts and a different pleading, the number could have been higher still.

If you are unsure who owns the copyright in the material your business is using, or you have received a letter of claim about images on your website or social media, do get in touch. I’m a solicitor who helps businesses with Intellectual Property Law.