Fraser-Woodward Ltd v BBC & Brighter Pictures Ltd

Reference: [2005] EWHC 472 (Ch); [2005] EMLR 487; [2005] FSR 36; [2005] 28(6) IPD 11; The Times, 15 April 2005

Court: Chancery Division

Judge: Mann J

Date of judgment: 23 Mar 2005

Summary: Copyright - Photographs - Fair dealing - Criticism and Review - Sufficient Acknowledgement - Incidental Inclusion

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Appearances: Christina Michalos QC (Claimant) 

Instructing Solicitors: Charles Russell for the Claimant; BBC Litigation/Bristows for the Defendants

Facts

The Claimant company brought copyright infringement proceedings against the Defendants for the use of 14 photographs of Victoria Beckham and her family in a television programme. The programme was produced by the Second Defendant and broadcast by the First Defendant. The Defendants relied on the defences of (1) fair dealing for the purposes of criticism and review within s.30(1) of the Copyright Designs and Patents Act 1988, and (2) in respect of two uses of the photographs, incidental inclusion pursuant to s.31(1).

Issue

The issues were:
(1) whether the use was for the purposes of criticism and review;
(2)whether the dealing was fair;
(3) whether there was sufficient acknowledgement of the author within the meaning of s.178; and
in relation to 2 of the photographs whether the use amounted to incidental inclusion.

Held

The Court held, dismissing the claim, that in respect of all but one of the photographs the use was for the purposes of criticism and review of other works, namely the tabloid press and magazines, applying Pro Sieben AG v Carlton UK TV Ltd [1999] and that the use was fair. Whilst Ashdown v Telegraph Group Ltd was authority for the proposition that the criticism must be of a work or another work and it was not sufficient to criticise anything to invoke the section, there was no requirement that the criticism and review contain specific reference to the work in question. The use of the remaining photograph amounted to incidental inclusion. Sufficient acknowledgment did not need to be express and it did not need to be a contemporaneous act of identification.

Comment

This decision gives guidance as to the meaning of sufficient acknowledgement, in respect of which there is very little case law: “The borderline between what is express and what is implied can get blurred anyway and it is not a satisfactory distinction to introduce in this area of the law. What is important in principle is that there is something which can properly be seen as an identification of the author . . . [Sillitoe v McGraw Hill Book Co] is not authority for the proposition that any identification must be express. All that is required is that it is an identification, though I think I can accept that it probably has to be one that can be readily seen and not require some form of hunting around or detective work in order to ascertain it. It is probably not enough to say that the author can be identified if you look hard enough; the authorship must be more apparent than that. However at the end of the day it is a question of fact whether there has been an identification.”