The Cost of Copyright Infringement

Justin Koo

Copyright cases in the Commonwealth Caribbean are rare. Admittedly, they have become more frequent in recent years as awareness about intellectual property rights increases. However, the development of copyright jurisprudence remains slow and at best patchy. Nonetheless, the recent dispute of Drakes v Grant[1] offers insight into copyright proceedings from start to finish, that is from allegation of infringement to a finding of infringement and finally the award of damages. Specifically, in the context of Trinidad and Tobago, Drakes v Grant was the first successful infringement case concerning the right of reproduction and as such is an important case given the general lack of copyright litigation.

Recap of Case

Drakes v Grant concerned the unauthorised reproduction of the claimant’s photograph depicting Peter Minshall’s costume ‘The Dying Swan, Ras Nijinsky in Drag as Pavlova’. The photograph was used to advertise the defendant’s event, ‘Tobago Fashion Coda 4’. The facts of the case indicated that the claimant requested the defendant to pay a licence fee of $5800.00 TTD subsequent to finding out that the photograph was being used without permission.[2] The defendant refused to pay and the claimant proceeded with litigation arguing that there was reproduction infringement (among other claims which were ignored by the judge) of the photograph.[3]

In terms of substantive copyright developments, Drakes v Grant is an important case because it ventilated two key elements of Trinidad and Tobago’s copyright law, originality[4] and the right of reproduction,[5] and moreover it was the first time that an award of damages for infringement of an exclusive right was discussed.[6] Prior to this, Full Blown Entertainment v Matthews[7] was the only case involving a substantive discussion on the exclusive rights under Trinidad and Tobago’s copyright law. However, in Full Blown Entertainment the claimant lost the case and there were no damages to be discussed.[8]

The Award

Following the earlier finding of copyright infringement by Rahim J in the 2021 decision, Master Pierre granted the claimant an award of damages in the sum of $10,800.00 TTD and legal costs to the sum of $14,000.00 TTD.[9] The award of damages in this case sets a valuable precedent for the quantification of copyright infringement in Trinidad and Tobago. The claimant had requested an award comprising the licence fee of $5800.00 TTD and additional damages between $54,000.00 TTD and $225,000.00 TTD.[10]

The damages awarded amounted to the licence fee of $5800.00 TTD and an uplift of $5000.00 TTD to compensate for the claimant’s mental and emotional distress.[11]

Conclusion

In the aftermath of the Drakes v Grant scenario, infringers and would-be infringers should be mindful of the potential financial liability involved with using unauthorised copyright works. It is hoped that the quantification of damage for copyright infringement can prove to be a deterrent against infringement at any level. Moreover, it is hoped that the award of damages in the case serves as useful precedent to inspire copyright owners to enforce their copyright and litigate more frequently where alternative dispute resolution fails. 

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[1] Sean Drakes v Donald Grant (2021) CV2018-01224.

[2] ibid para 7.

[3] ibid paras 6 and 38. 

[4] ibid para 20.

[5] Ibid paras 42-44.

[6] Sean Drakes v Donald Grant (2022) CV2018-01224.

[7] Full Blown Entertainment Company Limited v Devon Matthews and others (2017) CV2015-01073.

[8] ibid para 78.

[9] Drakes v Grant (2022) para 36.

[10] ibid para 4.

[11] ibid para 29.