Lewison LJ comments that -
The background to the claim, in what I hope is uncontroversial language, is as follows. Mr Soloman is a hip hop artist who performs rap music and is well-known in the field. His stage name is "Dappa Dred". He has already produced tracks which have been put on the internet one of which was officially viewed by some 35,000 people. He may have uploaded as many as 30 tracks onto the internet. He has been interviewed in specialist magazines, and is well regarded. However, he does not have the cash available to fund the promotion and marketing of his work.
In 2009 Mr Soloman contacted BFS, who as their name suggests, make films. Mr Soloman asked BFS to make a video for him. The video was to be a digital video recording added to a sound recording of a track that Mr Soloman had made. Mr Soloman was also to appear in the video. Mr Soloman would not pay anything up front. BFS' reward would come in a profit share from future sales of the video to the public. BFS shot a video which featured Mr Soloman among the performers. On about 21 November 2009 BFS uploaded the video onto You Tube and sent Mr Soloman a link so that he could view it. However, the link did not work; and so BFS took down the video and uploaded it again with a new link. Mr Soloman viewed the video. He did not like what he saw. He also complained that BFS had uploaded the video to You Tube without his consent, thereby infringing both his copyright and his performance right and also infringing his moral right not to have his work subjected to degrading treatment. BFS responded by removing the video from You Tube on 26 November 2009. By 30 November BFS had deleted all copies of the video on their system. The video had remained on You Tube for some 5 days. BFS claim that the video was in fact uploaded to You Tube with Mr Soloman's consent; but Mr Soloman disputes that. For the purposes of this appeal I will assume that Mr Soloman is right about that issue.
Mr Soloman began proceedings in the High Court in Bristol on 3 February 2010. His claim form put the value of his claim at £800,000. The causes of action relied on in his statement of case (which he drafted himself) were breach of statutory duty, infringement of copyright and what he called loss of a chance.
The nub of the complaint about infringement of copyright and performance right was the presence of the video on You Tube for five days. The nub of the complaint about loss of chance was that the video had damaged the marketing potential of the work, and had, in some way, prevented him from making and selling more records and LPs.In considering Soloman's appeal Lewison LJ notes that -
The judge then turned to consider the question of damages. He considered the evidence about what had happened during the short period that the video had been viewable on You Tube. There was evidence before him that showed that during the period that the video had been posted on You Tube it had been viewed nearly 100 times. That is not to say that it had been viewed by 100 different people, because You Tube only records "hits" which may be multiple hits by the same person. But the judge concluded that apart from BFS' own personnel a maximum of some 50 people had seen the video. He assumed, in Mr Soloman's favour, that the video in its unfinished state was "derogatory" treatment within the meaning of the CPDA. He reasoned as follows. There were three possible consequences of 50 persons having seen the video. First, having seen its poor quality, they would decide not to buy the record when it eventually came out. On the basis of figures given to him by Mr Soloman the judge decided that Mr Soloman stood to make a maximum of £1.20 for each record sold. The judge was prepared to assume in Mr Soloman's favour that of the 50 people who saw the video, 40 would have bought the record once it had been released but for the poor quality of the video. This would produce for him a recovery of approximately £50. Second it was possible that those 40 people would themselves disparage or bad mouth the video. The judge was not prepared to make that assumption in Mr Soloman's favour since there was no evidence that anyone had done that. Nor is there now. Third, the 50 people might have liked the video so much that they bootlegged it. Again the judge was not prepared to make this assumption in Mr Soloman's favour in the absence of any evidence that this had in fact happened. Again there is no evidence now of any bootlegging. I might also add that there would in any event be a considerable overlap between this way of putting the claim and the first way, because the lost sales attributable to bootlegging would have been to some extent the mirror image of the lost sales due to people not buying the record at all.
The judge also said that he was not satisfied that Mr Soloman had put forward any real claim to loss of market potential.
Thus he assessed the maximum possible recovery by Mr Soloman at £50.Soloman's legal expenses would have been greater than £50.