Copyright: The defences of fair dealing for the purposes of criticism or review and incidental inclusion - Fraser-Woodward Limited v British Broadcasting Corporation

A television programme entitled "Tabloid Tales" which aired in England in 2003 and discussed Victoria Beckham's relationship with the press has been the catalyst for the English High Court undertaking a detailed review of the defences of fair dealing for the purposes of criticism or review and incidental inclusion.

This was an action for infringement of copyright in 14 photographs.

The relevant photographs were all of various members of the Beckham family. The photographs all appeared in a television programme that was broadcast by the BBC under the title "Tabloid Tales" and did so without the consent of the copyright owner.

It was asserted by the defendants that the programme intended to and did criticise and/or review tabloid journalism and the methods employed by the tabloid press and/or celebrities featured to build and exploit a story to their advantage. The defendants claimed that use of all the photographs was allowable under fair dealing for the purposes of criticism or review defence. In the case of three of the photographs, the defendants also claimed that their use was covered by the "incidental inclusion" defence. Justice Mann therefore had to decide whether the use made of the photographs was for the purposes of criticism and/or review of the photographs themselves or of another work or works and whether (in the case of 3 of the photographs) their use was incidental.

In coming to the conclusion that the defendants had not infringed the copyright in any of the relevant photographs, Justice Mann provided helpful guidance as to the ambit of these two defences. This guidance it important because the defences in question also exist under New Zealand's copyright regime (ss 41 and 42).

Fair dealing for the purposes of criticism or review

Section 30(1) of the Copyright, Designs and Patents Act 1988 (UK) provides:

(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.

The defendants argued that the concept of criticism or review had to be interpreted liberally and that the programme criticised and reviewed both the photographs and another work or works, namely the coverage of the Beckhams (and in particular Mrs Beckham) in the tabloid press. They argued that the criticism and review was of the photographs themselves and the philosophy or ideas behind them, and that there was criticism and review of another work (or works) namely the tabloid press.

The claimant argued that:

• so far as it was alleged that there was criticism or review of the photographs themselves, it had to be more than mere passing comment or passing reference, and in the present case there was no such thing;



• so far as criticism or review of another work was concerned, then that other work had to be a copyright work within the meaning of the Act, that other work had to be identified and that other work could not be a "general media attitude"; and



• references to underlying philosophy and ideas appearing in the authorities should not be taken as being a reference to any such concepts other than those appearing in the actual specific work itself.

Justice Mann gained assistance from the judgment of Robert Walker LJ in Pro Sieben Media AG v Carlton UK TV Ltd where it was stated that:

"Criticism or review" and "reporting current events" are expressions of wide and indefinite scope. Any attempt to plot their precise boundaries is doomed to failure. They should be interpreted liberally.

Applying that statement to the facts before him, Justice Mann found it impossible to accept the claimant's argument that there needed to be something beyond a bare comment before the defence could apply.

In answering the question of what was capable of being the subject of criticism or review for the purposes of the section, the judge had no difficulty in coming to the conclusion that the photographs themselves could be. However, he had more difficulty with the defendants' alleged criticisms of the philosophy and ideas underlying works and what (if any) other works were the subject of any criticism or review in the "Tabloid Tales" programme.

Notwithstanding this, Justice Mann found (relying on the previous decisions of Hubbard v Vosper and Pro Sieben ) that the ideas or philosophy underlying a certain style of journalism, as manifested in the relevant works themselves, could be the subject of criticism that fell within section 30.

He also confirmed that is not necessary for the other work or works referred to in the section (i.e. the ones being criticised or reviewed) to be specifically identified.

Justice Mann then turned to whether the 14 photographs had been deployed for the purposes of criticism or review. He found that 13 of the 14 photographs were used for this purpose saying:

"So far as the dictionary definitions are concerned, [the use of the 13 photographs fell] fairly and squarely within the definitions of 'criticism' when applied to the ideas underlying the reporting, and to some extent to the reports themselves, though those reports are not actually cited save insofar as headlines are sometime briefly in shot."

Fair Dealing

Of course, if use of copyright material is to fall within section 30(1) then that use must amount to "fair dealing". Jutice Mann set out the following guidelines which should be considered when determining whether use amounts to "fair dealing":

• It is relevant to have regard to the motives of the user.



• Whether there is fair dealing is a matter of impression: Banier v News Group Newspapers Ltd [1997] FSR 812 at 815.



• If some degree of use would be fair dealing, excessive use can render the use unfair: Hyde Park Residence Ltd v Yelland.



• In assessing whether the dealing is fair the court can have regard to the actual purpose of the work, and will be live to any pretence in the purported purpose of the work: Time Warner Entertainments LP v Channel Four Television Corporation plc.



• In the same vein, the amount of the work used can be relevant: Johnstone v Bernard Jones Publications Ltd. However, this must be carefully applied in relation to photographs. It makes more sense in relation to extended literary or musical works. If one is critiquing a photograph, or using it for the purposes of criticising another work, then the nature of the medium means that any reference is likely to be by means of an inclusion of most of the work because otherwise the reference will not make much sense. This degree of care is particularly appropriate in the context of a television programme where the exposure is not as (for example) continuous or permanent as publication in printed form would be.



• Reproduction should not unreasonably prejudice the legitimate interests of the author or conflict with the author's normal exploitation of the work: Berne Copyright Convention Article 9(2).

Applying the above guidelines, he found that there was nothing unfair about the use of the 13 photographs.

Sufficient acknowledgement

Under section 30(1), fair dealing is only a defence provided that it is accompanied by a sufficient acknowledgement. In relation to this issue Justice Mann confirmed that all that is required is:

"...that [there] is an identification, though I think that 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."

On the fact before him the judge held that there was a sufficient acknowledgement in relation to the 13 photographs.

Incidental inclusion

Section 31(1) of the Copyright, Designs and Patents Act 1988 provides:

"Copyright is not infringed by its incidental inclusion in an artistic work, sound recording or broadcast."

Section 41 of the New Zealand Copyright Act 1994 is in virtually identical terms.

In considering the incidental inclusion defence, Justice Mann referred to the judgment of Chadwick LJ in Football Association Premier League Ltd v Panini UK Ltd [2004] FSR 1. That was a case where the defendants had published photographs of Premier League footballers in their club strip, which included Premier League and club logos. In that case the League and clubs claimed the copyright in their logos was infringed by the relevant photographs. The defendants relied on the defence of incidental inclusion but that defence was rejected. Chadwick LJ said the question of whether there was incidental inclusion:

"turns on the question: why, having regard to the circumstances in which the [allegedly infringing work] was created - has [the original copyright work] been included in [the former]."

Accordingly, Justice Mann reviewed the relevant photographs in the case before him and considered whether their use was incidental (that is incidental to some other purpose) in the ordinary sense of that word.

He decided that in the case of two of the three relevant photographs their use was not incidental (but the defendants were nevertheless not liable for reproducing these two photographs as they had done so for the purposes of criticism and review).

In relation to the other relevant photograph he held that its use was incidental because the photograph had only appeared in the programme because the defendants' wanted to show the headline which appeared above it. (That headline was a sensational one relating to a plot to kidnap the Beckhams' children).

The action therefore failed in its entirety.

Enquiries and information

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