A BBC ‘Tabloid Tales’ programme featured no less than 14 photographs of the Beckhams. No permission had been obtained from the owner of the photograph copyright, who sued. The Beeb defended on grounds of ‘fair dealing’ and ‘only incidental use’. Did they win?
Fraser Woodwood Limited, the BBC, Brighter Pictures Limited and the Beckhams
Chancery Division of the High Court of Justice
A still potentially subject to appeal judgement was handed down in Chancery on the key media law issue of when unauthorised use of photographs will infringe copyright.
The case arose out of the BBC programme 'Tabloid Tales' hosted by former Daily Mirror editor, Piers Morgan. In one episode of the series, fourteen photographs of the Beckhams were featured, but none of these appearances had been licensed by the owners of the copyright in those photographs, Fraser Woodwood Limited (FWL).
FWL was not impressed and sued for copyright infringement. The BBC ran two alternative defences. First of all they said the use of the photographs was a 'fair dealing' and alternatively they said that the appearances of the photos were merely 'incidental.' "Fair dealing" and "incidental use" are two legitimate defences to copyright infringement claims, enshrined in the Copyright, Designs and Patents Act 1988.
Incidental use defence
The incidental use defence was thrown out by Mr Justice Mann as regards all the appearances of the photographs with the exception of one.
The odd one out was a small photograph of the Beckhams appearing within a newspaper headline. The focus of the relevant sequence in the programme was on the headline throughout the four seconds in which it appeared. It was also shown together with two other headlines and all were being depicted as examples of sensational headlines.
In this context, therefore, the judge felt that the appearance of the photograph was purely incidental and therefore copyright was not infringed. In all the other cases, although the judgement stopped short of any clear exposition of precisely what 'incidental use' actually means, the defence was thrown out on the basis that in each case there was a 'further purpose' to the appearance of the photograph. This was 'to provide or demonstrate the context of the image.'
"Fair dealing" defence?
Even though a substantial part of a copyright work is reproduced, the use may avoid being copyright infringement if it is a 'fair dealing.' There are various subcategories of fair dealing. One of these is 'fair dealing for the purposes of criticism or review.' For this defence to succeed, there must also be a 'sufficient acknowledgement' of the copyright owner. BBC relied on this species of fair dealing.
FWL said that fair dealing did not apply here. There was no critique or review of the quality or content of the photographs themselves. They also said there was insufficient acknowledgement of FWL as copyright owners.
The BBC countered by saying that for fair dealing for criticism or review to work, you did not need to specifically criticise or review the copyright work itself. In this context, it was enough for there to be criticism or review of the 'ideas or philosophy underlying a certain style of journalism as manifested in the copyright works.' The Judge bought this argument.
The BBC also argued that there was a sufficient acknowledgement of the author by way of the camera zooming in on Mr Fraser's name at the foot of a photograph in one instance and broadcast extracts during the programme of an interview with Fraser in which he talks about the photographs. Taking a broad brush view here, the judge felt that this was sufficient acknowledgement in relation to all the photographs featured. 'I do not think' the judge commented, 'that the concept of identification means that there has to be a precisely or virtually contemporary act of identification in each case. Once the identification has been provided, then it is capable of operating in relation to a later appearance of the copyright materials.'
FWL also sought to argue that the alleged fair dealing was not 'fair' because it was a public relations exercise for Mrs Beckham, because there was excessive use of the photographs given the context and because the use seriously devalued the photographs in the hands of FWL. The judge threw out all these arguments, however, and accordingly, the BBC got off.
Why this matters:
FWL is threatening to appeal, but since Mr Justice Mann refused leave to appeal, they will have to the Court of Appeal to go to get permission to take the case further.
As things stand, although the "incidental use" finding is unsurprising, the 'fair dealing' analysis does on the face of it look to be quite a liberal interpretation and application of the defence.
Whether it will now be more possible to run a fair dealing defence in a case of use of photographs in advertising, however, is distinctly dubious. Advertisers should not regard this judgement as a green light for wholesale unauthorised use of photographs in advertising materials. They should continue to assume unless advised otherwise that the appearance of any photograph will need a licence from the copyright owner.