Criticism did not breach copyright

month, Mr Justice Mann ruled in favour of the BBC and an independent
production company after celebrity photographer Jason Fraser’s company
sued them for breach of copyright. The case concerned the reproduction
of 14 photographs of the Beckham family, 13 of which were taken by
Jason Fraser, while rights for the 14th were assigned to his company.
All were licensed to the tabloid press. The programme Tabloid Tales
later showed the newspaper pages featuring the photographs without
permission, giving rise to a claim for damages, including additional
damages for flagrant copying under the Copyright, Designs and Patents
Act 1988 (“the Act”).

The defendants intended to criticise and
review tabloid journalism and celebrity methods of exploiting stories
to their advantage. The programme featured Victoria Beckham and posed
the question of whether she was a manipulator or a victim of the
tabloid press. The photographs (as published in the press) were shown
on screen for a matter of seconds. The defendants argued that their use
of the photographs fell within the defences in s30(1) of the Act – fair
dealing for the purposes of criticism or review of that or another work
accompanied by sufficient acknowledgement and in s31(1) – incidental
inclusion in the broadcast.

How the Beckhams are treated in the
media was at the heart of the programme. The judge held: The criticism
or review could apply to the photographs themselves and/or to any
“ideas and philosophy underlying” the photographs or a “certain style
of journalism” reflected in other works identified in only general
terms – such as tabloid newspapers’ approach to Victoria Beckham. This
included considering works and their “social or moral implications”.
The defence is designed to protect a critic or reviewer using copyright
material “to illustrate” his review or criticism.

There was
nothing unfair in the use made of the Fraser photographs in the
programme (even if Fraser had refused permission). There was no
excessive use since in any legitimate criticism or review a large part
of any photograph will have to be shown or the point cannot be made.
There was no suggestion the photographs were used to boost ratings,
making their commercial use unfair, nor did the programme have or risk
any unfair valuediminishing effect on the photographs.

A genuinely entertaining programme is not inconsistent with criticism or review.

acknowledgement did not have to be by express reference to Fraser nor
precisely contemporaneous, provided there was an identification that
did not require “hunting around or detective work”.

One of the
photographs of Victoria Beckham was reproduced incidentally because it
was within a newspaper headline featured in the programme.

if there had been an infringement (there was none), recognising a
potential legal risk does not itself justify an award of additional
damages for flagrant copying.

The claim was dismissed and
permission to appeal refused. Fraser has indicated he will seek
permission from the Court of Appeal and challenge the ruling.

the media this could be a double-edged sword. On the one hand, it is
welcome news for those reproducing copyright works in the context of
fair criticism of that or other works or their underlying
ideas/philosophy or social implications. On the other, there is an
increasing risk of exclusive paparazzi shots being reproduced, even in
the face of express refusal of permission.

Benjamin Beabey is a solicitor in the media team at Farrer & Co

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