[2025] EWHC 1954 (IPEC)

The Defendants’ case about this Photograph changed in the course of the proceedings. In the Counterclaim it was said that he had taken the Photograph. The Claimant served a Part 18 Request asking for particulars of his claim to authorship of the Photograph. In his Replies, Mr Bray accepted that he was not the photographer but said that the Photograph was taken by a roadie called Peter Moore (nicknamed ‘Ferret’) on Mr Bray’s camera “on the commission of” Mr Bray, for which he was paid by Mr Bray. This Reply not only smacked of an attempt to bring in the necessary elements to satisfy s 4(3) and s 48 but contradicted the Counterclaim. To be fair to Mr Bray, he had not signed the statement of truth to the Defence and Counterclaim and may not have read it at the time, but in chief he did confirm the truth of its contents. In his statements Mr Bray said again that Ferret had taken the Photograph on his camera. He did not pursue the pleaded commissioning point or suggest that he had paid Ferret to take the Photograph.

Overall, I formed the view that Mr Bray had no real recollection of this photograph being taken or the arrangements made for it to be taken, and I consider that his evidence on this point was unreliable. He presented a shifting case about this work, which appeared to me to have been influenced by the course of the litigation.

Mr Lant’s pleaded case was that Mr Nichol, a professional photographer, had been commissioned by Neat Records to take the Photograph, but he did not deal with this in his witness statement. I consider that Mr Lant’s suggestion that the photograph was taken by Mr Nichol, who had been commissioned to take it by Neat Records is plausible, bearing in mind that of course Mr Lant was also present when the photograph was taken, and that the negatives appear all to have been held by Neat Records.

Given the contradictions in Mr Bray’s evidence, and in the absence of any evidence to corroborate his claim that Ferret rather than Mr Nichol took the Photograph, and did so using material owned by Mr Bray, I find that he has not proved that he is the owner of the copyright in it.