In a trailer for a season of programmes on former Tory leader Lady Thatcher, a clip of a famous Thatcherism was broadcast apparently without clearance. We report the uncomfortable consequences at the hands of the Lady Not For Turning and the lessons.
Who: Margaret Thatcher and UK History
When: April 2005
BBC/Flextech joint venture TV channel UK History broadcast a trailer for a week long season of programmes on former Tory leader Lady Thatcher.
Included in the trailer was a clip from existing footage in which Thatcher uttered the famous phrase "Treachery with a smile on its face" to describe efforts to ease her out of office.
Unfortunately for the satellite channel, the sequence had apparently not been cleared for copyright. It has been reported that Thatcher, together with the production company responsible for making the film in which Thatcher spoke the distinctive quote, are demanding damages.
Why this matters:
If the clip had not been cleared, this would have exposed UK History to claims that at least two copyrights had been infringed.
The first copyright in question will be the copyright in the film of Thatcher saying the words. This will most usually be owned by the production company. The second copyright will arguably be the copyright in the words "Treachery with a smile on its face". We say "arguably" here because there has to be some question as to whether the seven words "Treachery with a smile on its face" will classify as the "original literary work," which they have to be to qualify for copyright protection separately from the film.
To reach a verdict on this issue, the court will have to ask the question whether the words "convey information, provide instruction or give pleasure". Thatcher will no doubt argue that the pungent phrase skilfully and economically conveys information as to the essence of what was thought she was describing and marketinglaw's view is that she should stand a good chance of succeeding on the point.
The case underlines that there is no special dispensation from laws protecting intellectual property for ads which reproduce film snippets for programme trailers. There is a defence of "fair dealing", but this only applies in cases where the use is for "research, criticism, private study or review" or for reporting current events. None of these categories applies here.