P.B.I. Publications (Hong Kong) Ltd v. Marks Hundred Co, Ltd

1987 No. A1663

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram:  Master Betts in Chambers

Date of Hearing :  22nd May, 1987.

Date handed down:  5 Jun 1987.

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ASSESSMENT OF DAMAGES

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1. The plaintiff is publisher and owner of the copyright in a magazine named “Playbody (Chinese Edition)”.

2. In the course of that business it engaged the services of a lady to be photographed. They paid the costs of a professional photographer and they paid the lady for the assignment to them of all rights in the photographs so produced.

3. In January 1987 the plaintiff published a number of those photographs in its magazine. Subsequently, the defendant published a copy of one of those photographs in a magazine named “Nouveau City Weekly Magazine”.  This came to the notice of the plaintiff and in March the writ in these proceedings was issued. The Prayer in the Statement of Claim sought:-

“(a)  Damages for infringement of copyright;

(b)   Further or alternatively; an account of the profits made by the Defendant by the said infringements and payment of the amount found to be due on taking of such account;

(c)    Further or alternatively, damages for conversion;

(d)   Further or other relief;

(e)    Costs.”.

4. The Writ was duly served, no acknowledgment was filed and on 16 April Interlocutory Judgment entered for damages to be assessed. It did not particularise whether such damages were sought under paragraphs (a) or (c) above, or both, and sought no account under paragraph (b).

5. The matter came before me for assessment on 22 May and evidence was given by Mr. Albert Chen Cheng Han, who is the Editor and Publisher of the plaintiff magazine. The whole of his evidence and Mr. Oldham’s submissions occupied a total of 13 minutes and amounted to putting forward four propositions.

6. The first proposition was that the defendant had taken the benefit of the payment made to the model by the plaintiff of $7,800.00. This is undoubtedly true and would certainly have been more serious had the defendant's magazine published the photograph before the plaintiff did. As it was, the plaintiff had obtained from the model exactly what it paid for and was not able to provide any evidence it had suffered any financial loss under this head.

7. The same applied to the second claim which related to the costs of the photo session where the plaintiff’s complaint, again, is that the defendant had taken some benefit from their expense and trouble.

8. The third claim was for the loss of the income they would have expected to receive had they permitted the defendant to use the photograph. Mr. Chan produced a debit note; as an example, in another matter where a charge of $5,000.00 had been made for the use of a photograph, the copyright in which was owned by the plaintiff. He told me the plaintiff company had only once entered into such a transaction and would not have done so in respect of these pictures, at any rate, to the defendant, whose magazine sells for $4.00 in contrast to the plaintiff's magazine which sells for $25.00.

9. The final claim, which I cannot say was pressed with any vigour, was for damages for loss of reputation. This was based simply on the evidence of Mr. Chan that he had received a complaint from the photographer who had taken the pictures.

10. On this evidence I have the greatest difficulty in finding any actual pecuniary loss at all to the plaintiff. It obtained everything it expected from the pictures except exclusivity in respect of one of them, which was later published in a much cheaper magazine. There is no evidence, even) that anyone, other than the photographer himself, identified the picture as having been published in the plaintiff's magazine.

11. The plaintiff's copyright has been infringed and in the absence of any satisfactory evidence to show damage, I make a nominal award of $10.00. 

12. Mr. Oldham addressed me on the nature of this action and invited me to award costs of this assessment on the High Court scale.  In view of the amount of my assessment, that course is not justified award costs to the plaintiff on the scale appropriate to the District Court.

Appearances:  Mr. G. Oldham of Gordon D. Oldham &: Co. for Plaintiff

Defendant unrepresented and absent.