The defendant was accused of infringing copyright in a TV programme relating to the pregnancy of a woman with eight foetuses. The defendant claimed fair dealing, but that defence was rejected by the trial judge.
Held: The decision was reversed. The test of use for ‘criticism or review’ is objective, and satisfied here with full attribution and short extract for clear journalistic purpose. Fair dealing was established through subjective test of the copiers intentions from the work as a whole: ”Criticism or review’ and ‘reporting current events’ are expressions of wide and indefinite scope. Any attempt to plot their precise boundaries is doomed to failure. They should be interpreted liberally’ and ‘Criticism of a work need not be limited to criticism of style. It may also extend to the ideas to be found in a work and its social or moral implications.’ and ‘It may be said that those words [‘The Plaintiff’s Film and/or the Plaintiff’s Broadcast and/or other media exploitation’ ] are very vague . . Nevertheless the judge should in my view have taken as his starting point that the appellants’ pleaded case was that the Carlton Programme was criticising various works representing the fruits of chequebook journalism, of which the TAFF report was one. The other (which might have been more particularised if Pro Sieben had pressed) were daily or weekly newspapers mentioned as having run stories on Ms Allwood or her partner or one or more of the other ‘ordinary people’ to whom ‘something extraordinary happens in their lives’. Four newspapers – the News of the World, the Sun, the Daily Mirror and the Daily Mail – were mentioned frequently in the Carlton programme, with shots of mastheads, headlines and parts of articles in those papers. Other newspapers (and one British television programme) received passing references.’ The judge ‘ . . . did not consider the possibility that [the programme’s use] might have been for the purpose of criticism or review of the TAFF report and the newspaper material mentioned above, taken collectively as a genre of the fruits of chequebook journalism’ Such use, thus described, was capable of falling within the section: ‘The Carlton programme as a whole was in my judgment made for the purpose of criticism of works of chequebook journalism in general, and in particular the (then very recent) treatment by the media of the story of Ms Allwood’s multiple pregnancy.’
Judges:
Robert Walker, Nourse, Henry LJJ
Citations:
Times 07-Jan-1999, Gazette 03-Feb-1999, [1999] FSR 160, [1999] 1 WLR 605, [1998] EWCA Civ 2001
Links:
Statutes:
Copyright Designs and Patents Act 1988 30
Jurisdiction:
England and Wales
Citing:
Appeal from – PRO Sieben Media Ag v Carlton UK Television Ltd and Another ChD 24-Sep-1997
The laudable motives of the defendant in an infringement of copyright were no defence, but relieved him from liability for additional damages. . .
Confirmed – Time Warner Entertainments LP v Channel Four Television Corporation plc CA 1994
In testing whether a defence to copyright infringement of fair dealing succeeds, the court can take note of the actual purpose of the work, and will look carefully to verify the claimed purpose: ‘it is necessary to have regard to the true purpose of . .
Cited by:
Cited – Designers Guild Ltd v Russell Williams (Textiles) Ltd (Trading As Washington DC) HL 28-Nov-2000
Copyright Claim: Was it Copied, and How Much?
The claimant sought to enforce its copyright in artwork for a fabric design Ixia, saying the defendant’s design Marguerite infringed that copyright. Two issues faced the House. Just what had been copied and if any, then did this amount amount to the . .
Cited – Fraser-Woodward Ltd v British Broadcasting Corporation Brighter Pictures Ltd ChD 23-Mar-2005
The claimant asserted infringement of copyright by the defendants in photographs of the family of David Beckham. The defendant admitted using the photographs but asserted that no permission was required since the use was a fair dealing.
Held: . .
Cited – Hyde Park Residence Ltd v Yelland, News Group Newspapers Ltd, News International Ltd, Murrell CA 10-Feb-2000
The court considered a dispute about ownership and confidence in and copyright of of video tapes taken by Princess Diana before her death.
Held: The courts have an inherent discretion to refuse to enforce of copyright. When assessing whether . .
Cited – Esure Insurance Ltd v Direct Line Insurance Plc ChD 29-Jun-2007
Both companies sold motor insurance products at a distance and used as logos and symbols either a telephone or a computer mouse, in each case on wheels. Direct line claimed the use of the mouse by esure infringed its own trademarks, and resisted . .
Cited – Mehdi Norowzian v Arks Ltd and Guinness Brewing Worldwide Limited (No 2) CA 11-Nov-1999
The claimant film artist showed a film to an advertising agency, who did not make use of it, but later appeared to use techniques and styles displayed in the film in subsequent material sold to third parties.
Held: A film was protected as a . .
Cited – IPC Media Ltd v News Group Newspapers Ltd ChD 24-Feb-2005
The defendant sought to advertise its new TV listings magazine, and to do so reproduced in its advert a copy of the front page of the equivalent magazine published by the claimant. The claimant sought damages for copyright infringement. The . .
Mentioned – Lucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
Cited – The Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others ChD 26-Nov-2010
The claimant newspapers complained of the spidering of the web-sites and redistribution of the materials collected by the defendants to its subscribers. The defendants including the Public Relations Consultants Association (PRCA) denied that they . .
Cited – Heythrop Zoological Gardens Ltd (T/A Amazing Animals) and Another v Captive Animals Protection Society ChD 20-May-2016
The claimant said that the defendant had, through its members visiting their premises, breached the licence under which they entered, by taking photographs and distributing them on the internet, and in so doing also infringing the performance rights . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 19 May 2022; Ref: scu.85045
