Sunday, 21 November 2010

Image rights: England v Germany and Philip Woolas's mug

Matt Wardman of the Wardman Wire asks an interesting question on the mySociety:public mailing list. He had created a couple of mug designs poking fun at the former MP Phillip Woolas and submitted them to the online platform Spreadshirt. According to his blog post they refused to accept the designs, saying:

These designs or products most likely infringe legal regulations. If not then the content is considered offensive, discriminatory or glorifies violence.

Now of course the designs were offensive — in the sense that someone could be offended by them — that really was the idea. If there were a law against being offensive Private Eye could never be published. Spreadshirt's Terms and Conditions say nothing to forbid offensive material; nor could the designs possibly seen as discriminatory (except perhaps against MP's who lose election courts) or glorifying violence. What of the "legal regulations" that Spreadshirt thought might be infringed.

A later response gave some clarification:

"Unfortunately we could not admit them for your shop because they infringe on the personal rights of Phil Woolas. These basically state that any image with his photo or name on it that does specifically refer to his person must be authorized by him. "
Such an unqualified statement of law must be rubbish, at least in any civilised society. If it were true then editors would find it virtually impossible to illustrate their newspapers and most of their budgets would be spent on clearing image rights with those depicted.

English law doesn't recognise an image right per se. The use of a person's image is not entirely free. For example if I take a photograph of you, you may be able to prevent me from using it:

  • in a way that is defamatory of you — as in Tolley v J S Fry Ltd [1931] AC 333, where an amateur golfer successfully sued for libel when his image was used in a chocolate advert since it carried an implication that he had been paid for the advertisement and was therefore not maintaining his amateur status;
  • to pass off your business as mine — this extends as far as using the image of a celebrity to falsely imply that they endorse my business, as Talksport did when the edited an image of Eddie Irvine holding a mobile phone into one holding a radio labelled "Talksport" in Edward Irvine Tidswell Ltd v Talksport [2002] EWHC 367 (Ch);
  • in breach of trademark — assuming of course that you have trademarked your image and that my usage amounts to an infringement of that mark;
  • in breach of confidence — if I received the photograph in confidence and my use of it is a breach of that confidence
  • in a way that infringes your right to privacy derived from Article 8.1 of the European Convention on Human Rights(assuming I obtained the photograph in confidence) — in a case (Campbell v MGN [2004] UKHL 22) brought by Naomi Campbell against the Mirror for the publication of photographs of her going to a Narcotics Anonymous meeting, the House of Lords extended the action for breach of confidence to cover intrusions into an individuals private life;

There is also the Data Protection Act 1998. If the photographs are processed by computer (as they are by spreadshirt in this case) then they must also be “personal data”. If so, then they may only be processed if one of the conditions in Schedule 2 to the act are met. Processing for the purposes of journalism, literature and art is excluded from an obligation to comply with most of the data protection principles (by section 32) which makes life very much easier for newspapers. For use of photographs which is not journalism, literature or art, paragraph 6 of Schedule 2 would have to be relied on which requires that:

The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.
Unfortunately there has been little consideration of this aspect of the Data Protection Act. In many cases the act is pleaded, but the eventual decision hangs on some other branch of the law. For example in Campbell's case.

It seems to me that neither of the mugs could possibly be defamatory (“Phillip Woolarse” doesn't come close), no-one coudl think that the mugs implied that Mr Woolas endorsed the Wardman Wire or that they were really the same business as him. The photographs were taken from election leaflets, criticised by the election court, and so are hardly an invasion of Mr Woolas's privacy and, arguably, they are “art” and so defensible against a Data Protection Act 1998 claim.

So much for England, but spreadshirt is German based. Now as an English lawyer, I known next to nothing about German law, but as I understand it the German KunstUrhG (law on the copyright of works of visual arts and photography) recognises a right known as Recht am eigenen Bild, usually glossed as “right in their own image” which I will refer to as “image right”. Section 22 of the KunstUrhG prohibits the distribution or public exhibition of the image of an individual without that individual's consent. A right to control over the use of one's image is also derived from Article 2 of the German Basic Law.

To an English lawyer's eyes this seems, at least at first sight, to give an excessive degree of control by an individual over the use of their image, and also to be a serious impairment of the freedom of speech. But German law is much more nuanced than that, not least because Article 5 of the Basic Law guarantees a right to freedom of expression.

Section 23 of the KunstUrhG makes a number of sensible exceptions, including one for images of people from the sphere of contemporary history (Bereiche der Zeitgeschichte). Until recently the German courts divided contemporary public figures into two groups: absolute figures of contemporary society (absolute Person der Zeitgeschichte) — those who stand out from the rest of society for example because of their political or social position, such as major political figures; and relative figures of contemporary society (relative Person der Zeitgeschichte)— those in whom there is public interest only due to a single event, such as victims of a notorious crime.

Section 23(1) is subject to section 23(2) which prevents distribution or display which harms the legitimate interests of the person portrayed (or after their death, the legitimate interests of their family). But section 23(2) aside, the absolute/relative classification would have meant that absolute figures of contemporary society had little protection against the use of photographs in a way that invaded their private lives unless they could show that a specific legitimate interest had been harmed.

The German law was found to be contrary to Article 8 of the European Convention on Human Rights in von Hannover v Germany brought by Princess Caroline of Hanover. The German Federal Court dropped the absolute/relative distinction (VI ZR 51/06) and held that the proper approach in all cases was to consider the balance between an individual's article 8 (basic law article 2) rights as against the interests of free speech under article 10 (basic law article 5). This approach has been endorsed as constitutional by the Federal Constitutional Court in a decision [link to English version] which usefully summarises a lot of the background.

Even after Princess Caroline's victory in the European Court of Human Rights, not everything has gone her way. Although the German courts agreed to prevent the distribution of some pictures of her, they permitted others. They have upheld the principle that sometime the interests of journalism, even where that is merely for entertainment rather than purely for information, outweighs the rights of an individual to their image. Princess Caroline is pursuing further action before the European Court of Human Rights.

My apologies for that long digression into German law (or what little I understand of it). In short: Spreadshirt's statement about image rights is rubbish even in German law. It seems to me extremely unlikely that using a picture of a Member of Parliament taken from an election leaflet that was the subject of a notorious and important trial could fall foul of the German image right as I have explained it. Spreadshirt staff may be forgiven for not realising that (if they are based in Germany) but for knowing that Mrs Thatcher (who cast a long long shadow) was a public figure.

Matt Wardman also wondered whether there might be a problem with copyright in the original election leaflet. The short answer is that

  • copyright subsists in election leaflets just as in almost everything else (there is no special exception for them);
  • copying the image is therefore a potential infringement, unless there is some defence available;
  • there is no “fair use” defence in English law, contrary to the situation in the United States;
  • there might be a defence of fair dealing for the purposes of criticism or review (to be found in section 30 of the Copyright Designs and Patents Act 1988, on the basis that the images on the mugs are a critical work, criticising the election leaflets which brought about Mr Woolas's downfall and that they are fair because they only use a small part of the offending leaflet;
  • there might also be (and in this case there really ought to be) a public interest defence.
Copyright exceptions are so open textured that it is very difficult to be certain as to any of these, but I suspect any copyright suit would look very stupid.


Anonymous said...

If I were a photographer who had been commissioned to take the photograph in question - and assuming I had maintained my copyright in the photograph - then I would be annoyed to see it reproduced without authorization on a mug for sale. I would consider myself to have a cause of action, too.

I don't think a defense of criticism, review, or parody would stand up; after all it's not the photograph that's being critiqued, or parodied.

Similarly, newspapers are not permitted to ignore copyright on photographs they print simply because they are making legitimate comment on an individual; they must licence photographs appropriately, be they of Phil Woolas, Margaret Thatcher, or anyone else.

Francis Davey said...

I understand what you are saying, but being annoyed by something doesn't of itself entitle you to a cause of action.

Specifically a defence of criticism or review (there's no defence of parody in English law) permits the use of a work for the purposes of criticism of the or another work, see s30(1) Copyright Designs and Patents Act 1988.

There are more questions to ask about a fair dealing defence (eg whether it is really "criticism or review" and whether the dealing is "fair") but its not plainly wrong as you imply.

"Criticism or review" must be of a work or another work (or a performance of a work) and not merely criticism of the behaviour of a political figure -- see Ashdown v Telegraph Group for a clear example of this. So the newspaper example you give is not relevant.

Anonymous said...

Firstly, supposing that you are right, in this instance, where is the "sufficient acknowledgement" that 30(1) requires?

Nor can I agree with your analyis: what, exactly, do you consider the *work* to be criticised or under review here? The mug makes no reference to the original leaflet, which you might suppose to be required, if you consider the election leaflet itself to be under 'review'.

I cannot interpret 30(1) to mean that criticism or review of *anything at all* gives rise to a fair dealing defence; only of the work itself, another work, or a performance of a work.

Further, 30(2) of the act exempts photographs from fair dealing in respect of the reporting of current events, which you might otherwise argue the mug to be.

Francis Davey said...

I thought it was fairly clear that my suggestion for a s30(1) defence was that the defence would relate to the infringement of any copyright in the image (because that is what my article is about) but that the criticism would be of the election leaflet (another work). I say that fairly plainly in my blog post.

There's no requirement that the work being criticised be identified, specifically. Section 30 contains no such requirement and the courts have allowed a s30 defence on the basis that the work criticised was a general class of works, eg "cheque-book journalism" in Pro Sieben v Carlton [1998] EWCA Civ 2001.

The "sufficient acknowledgement" requirement is directed at the work in which the copyright subsists.

Here I am speculating as to whether a defence would be at least arguable, but if the photograph was incorporated into the election leaflet without any identification of the photographer (in whom, let us assume for the sake of argument, copyright subsisted), then the photograph would have been "published anonymously" would it not?

"sufficient acknowledgement" is not required to identify the author of a work in the case of anonymously published works, see section 178.

So a point of argument would be: is the fact that a reasonably astute member of the mug's audience would know that the mug parodied the relevant election leaflets and therefore the photograph must be the photograph taken from those leaflets and so was sufficiently identified as to come within the definition in s.178? Any such argument by the defence could be assisted by reliance on the defence's article 10 rights (at least in terms of the court's interpretative obligation).

It must, at least, be an arguable defence. Whether it would succeed or not is another matter (and would depend on facts we do not know).

I of course did not suggest that fair dealing for the reporting of current events was a possibility because, as you point out, it isn't. Public interest might well be.