Brighter Pictures Ltd produced a TV programme for the BBC entitled “Tabloid Tales” commenting on ways in which the tabloid press is exploited by celebrities. The programme featured discussion of the press coverage of Posh and Becks with images of newspaper pages containing articles, photographs and headlines relating to the Beckhams. The owner of the copyright in some of the photographs taken by photographer Jason Fraser, Fraser-Woodward Ltd, sued for infringement of copyright. With the exception of one photograph which was on screen for about four seconds, each of the photographs was shown for no more than a few seconds. The BBC and the production company’s principal defence was that of fair dealing for the purpose of criticism or review under section 30(1) of the Copyright, Designs and Patents Act 1988.
Section 30(1) provides that “fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a significant acknowledgement.” The first issue to be determined was whether the use made of the photographs was for the purposes of criticism or review of the work (i.e. the photographs) or of another work. This raised two separate points – was there criticism or review and, if so, what was the work being criticised or reviewed?
The defendants argued that the programme contained criticism or review of both the photographs and of another work or works, namely the coverage of the Beckhams in the tabloid press. The criticism or review was therefore of two things – the photographs themselves and the philosophy or ideas behind them. The claimant alleged that there was no criticism or review of the photographs themselves because there was no more than passing comment or passing reference to the photographs. Further, the claimant maintained that the “other work” being criticised or reviewed had to be an identifiable copyright work and this would not therefore cover the philosophy or ideas in question.
Mr Justice Mann held that the ideas or philosophy underpinning a certain style of journalism can be the subject of criticism or review which falls within section 30. The “other work” does not have to be a copyright work. As all of the photographs (with the exception of one which was covered by the incidental inclusion defence) were used to “demonstrate a certain style of journalism – the coverage of celebrity – and to comment on (in the form of criticism) that style as manifested in the relevant publications (tabloid newspapers and, to a certain extent, magazines)”, they were clearly used for the purpose of illustrating the review or criticism of the ideas and philosophy. Additionally, the judge found that the programme contained criticism of the photographs themselves, in that it questioned whether these ostensibly “snapped” photographs of the subjects going about their day-to-day activities were actually pre-arranged with the photographer in question.
The judge then addressed the issue of whether the use of the photographs amounted to “fair dealing”. In terms of the amount of the work shown, he concluded that “any legitimate use of a photograph for the purposes of criticism and review is likely to require display of a large part of the photograph in order to make the point that is being made.” In terms of the length of the on-screen display, the judge held that it could not be deemed to be too lingering, because the display of each photograph was so brief. He also dismissed the claimant’s argument that the commercial nature of the use of the photographs made it unfair. Criticism and review for commercial purposes can still benefit from the fair dealing defence provided the copyright material is not used purely to derive a commercial gain. In terms of the argument that the use in the programme would compete with the claimant’s commercial use of the material thereby devaluing it, the judge held that “risk to the commercial value of the copyright may go towards demonstrating or creating unfairness, but it does not follow that any damage or any risk makes any use of the material unfair.” He found that the use of the photographs in the programme was “not gratuitous or lingering, so if there was any risk of over-exposure, it was kept to an acceptable minimum.”
Fair dealing can only be a defence if it is accompanied by “sufficient acknowledgement”. Certain of the photographs were accompanied by a shot of the photographer’s name and/or oral acknowledgements of the photographer’s identity by the presenter of the programme. This did not apply to all of the photographs. Despite this, the judge considered that the identification of the author/photographer could be said to be “carried over” from the other acknowledgements. The judge rejected the idea that identification means that there has to be a “precisely or virtually contemporaneous act of identification”.
With decreasing budgets and the increasing popularity of “review” style TV programmes, the use of extracts from copyright works on the basis of the fair dealing defence seems to be a popular option. This decision, which touches on a number of aspects of the defence, represents a clear and pragmatic application of the law in this area and gives useful guidance whilst highlighting the need for producers to proceed with caution. Producers must consider carefully whether fair dealing applies before going ahead without the normal copyright licences.