The Court of Appeal has recently dramatically overturned most of the first instance verdict in the long-running Douglas/Zeta Jones/Hello!/OK! wedding photograph dispute. Subject to the inevitable House of Lords appeal, we inspect the appellate entrails.
OK! and Hello! magazines Catherine Zeta-Jones and Michael Douglas
The Court of Appeal
Short of a distinctly on the cards appeal to the House of Lords, we may now have witnessed the final denouement in the infamous Zeta-Jones/Douglas wedding pictures litigation involving Hello! and OK! Magazines.
The long-running case began in 2000 with an ultimately unsuccessful application to the court by OK! magazine to injunct Hello! from publishing surreptitiously taken photographs of the Zeta-Jones/Douglas wedding.
Then, at trial last year, Hello! magazine, the publishers of the "legitimate" photographs of the wedding, were awarded £1,033,156 damages plus £1m in costs by Mr Justice Lindsay, the judge at first instance.
Now, however, the Court of Appeal has taken a different view. The only portion of the original damages award which survived the appeal was the £14,500 awarded to Zeta-Jones and Douglas personally. This comprised £3,750 each for distress at seeing the publication of Hello!'s surreptitious snaps and £7000 jointly for the labour and expense of selecting the photographs that were to be provided under their contract with OK!.
Following a European Court of Justice verdict last year over snatched photographs of Princess Caroline of Monaco, the Appeal Judges held that the Douglases did have a right to keep private information about themselves which they chose to retain in the form of authorised photographs of the wedding.
This was sufficient therefore to justify the £14,500 award where that right was abused.
As for the remainder, however, which was all awarded to OK! magazine, the Court of Appeal said it should have never have been awarded and ordered it to be repaid.
The basis for their decision was that the rights of the Douglases were personal rights and were not property that could be assigned or licensed out to the publishers of the legitimate wedding photographs. To put it another way, OK! bought an exclusive licence to use of wedding pictures supplied by the licensor, not the right to sue a third party for infringement of a right vested in the licensor to object to the publishing of other photos of the event.
Taking into account costs, pundits suggest the total cost of the case so far to the Douglas/OK! Camp has been over £4 million. "Top spend over £4m to recover a total of £14,000 is grand folly indeed," said Hello! lawyers.
Why this matters:
The Douglases and OK! magazine's publishers say they are taking the matter all the way to the House of Lords. In the meantime, are there any lessons here for the marketing industry? Precious few.
Although the verdict has been hailed as a major step down the road towards a fully fledged right of privacy here in the UK, with the Appeal judges getting radical and dumping the phrase "confidential information " in favour of "private information" the particular facts of the case are unlikely to be replicated in any case where unauthorised use is made of a celebrity's name or likeness in advertising.
The principal area of legal expenses here will continue to be passing off. But what if a surreptitiously snapped image of the personality is used in an ad and an additional claim of breach of privacy rights/confidence is made. This might be put on on the basis that the personality should be able to control the use of his or her likeness in circumstances which might depending on the product being advertised or the context, be demeaning or embarrassing.
The answer is that this verdict offers no material extra pot of gold for the litigating personality. The £3,750 a head awarded for distress was modest to say the least in what was an exceptionally high profile case. If the Douglases were unable to extract more from the Court, what chances will there be for lesser personalities in less emotive and extreme circumstances?
As for the ordinary person in the street, who might appear by chance in advertising without their consent, this case might just provide grounds for a cause of action where a passing off claim will simply not be available given the ordinary Joe's lack of bankable "goodwill" in their likeness. However, as the emphasis of the judgments appears to be on cases involving celebrities who can make money out of their likeness, the prospects for huge rewards from litigation look slim.