The football season is almost upon us. For some it’s a moment of despair as football takes over again. Among that number is Panini, seller of collectable stickers of Premiership footballers.
Earlier this month, the Court of Appeal handed down its unanimous 3-0 judgment in favour of the Premiership, its clubs and Topps, the producer of the official Premiership sticker collection, in their claim that Panini had infringed their copyright in the club badges and the Premiership emblem (“the logos”).
Nearly all the players pictured in the Panini 2002-03 season collection wore their side’s strip bearing the logos. Panini claimed that the logos were merely incidental inclusion of one copyright work in another. The judge at first instance found the inclusion of the logos was integral to the depiction of the players in their current strip.
The court said the word “incidental” needed no special definition and the court should apply its ordinary meaning in the particular circumstances. In Panini’s case, it was irrelevant what the photographer had in mind when he took the pictures. What was key was the circumstances in which the pictures (which were artistic works) were created. The photos were to be used in a sticker album with the idea of being attractive to collectors. To be attractive, the players had to appear in their teams’ strips and the strips had to be authentic. To be authentic, the club badge and the emblem had to be included. The use of the logos was not therefore incidental.
Off his own bat, one of the Court of Appeal judges went further and aired the opinion that the sticker albums were not artistic works, but compilations. If right, this meant they would be treated as literary works and therefore Panini would not even be entitled to argue that the logos were incidental. The Premiership’s lawyers declined to take up this suggestion, possibly concerned what affect it might have on protecting the official collection.
The Panini judgment might cause sports editors to believe their investment and innovation in previewing the forthcoming season are now wasted. Wait a second before pressing the “delete” button. Most previews will be editorial in nature, whether sponsored or not. They are unlikely to be in competition with the Premiership or clubs, in contrast to Panini. They are also unlikely to be collectables. Many photos will be action shots in which the logos may be obscured.
Ultimately, while football clubs, and in particular Premiership clubs, have sought in recent years to exert control over the copyright in photos taken inside their grounds, commercial reality must bite at some point.
It is one thing to pursue Panini, a commercial rival; it is another thing to cut off the oxygen supply the press gives the sport. Encouraging the press to airbrush club badges and sponsors’ names is no way for a sport to attract desperately needed sponsorship revenue. The Panini judgment does mean exercising greater care than perhaps might have been the case before, but there is no need to scrap the previews just yet.
Julian Pike is a partner with Farrer and Co