21 December 2023
Copyright (US) - Incidental capture of photos in Billie Eilish documentary not copyright infringement
In a recent decision, a United States District Court held that incidental use of photographs in a documentary amounted to fair use and was non-actionable, de minimis, use.
The documentary, Billie Eilish: The World’s a Little Blurry, followed the singer’s rise to fame and included a short scene that showed various photographs which were being exhibited in Auckland Airport. The photographs had been included in the documentary without permission and the photographer brought a claim for breach of copyright.
The claim failed on two bases: 1. the appearance of the photos was permissible under the doctrine of fair use; and 2. the copying was de minimis.
In relation to fair use, the court concluded the defendants’ use was transformative. The purpose of the photographs was to “comment upon and capture the spirit of modern aviation”, whereas the documentary’s purpose was to document Eilish’s life and career. Additionally, the amount and substantiality of the portion used were strong factors in favour of fair use, since the photographs appeared in clips that were mere seconds out of a 140-minute documentary. Finally, it was highly implausible, the court considered, that the appearance of the images in the documentary could be a market substitute for the photographs.
Regarding the de minimis principle, the court held that the copying “occurred to such trivial extent as to fall below the qualitative threshold of substantial similarity”. Each photograph appeared momentarily. Even where the photographs appeared, the focus was on Eilish rather than the images.
The case is a useful illustration of differences between UK and US systems. First, unlike in the US, there is a specific defence of ‘incidental inclusion’ of copyright material at section 31 of the Copyright Design and Patents Act 1988. If the claim had been brought in the UK, the programme makers could have potentially looked to the section 31 defence instead.
Secondly, the doctrine of fair use in the US is distinct from the doctrine of fair dealing in UK law. The key difference is that, whereas the doctrine of fair use can be applied to a broad range of scenarios, fair dealing in the UK is confined to specific purposes e.g. criticism or review, or reporting current events.
A form of ‘de minimis’ rule does exist in UK law, to be found at section 16(3) of the 1988 Act, which states that if use of material from a copyright protected work does not amount to a ‘substantial part’ of it, the use will not constitute an infringement.
Privacy - Complaint upheld in part over Channel 4’s 24 Hours in Police Custody
A complaint brought by a man referred to as Mr F against Channel 4 over the programme 24 Hours in Police Custody has been upheld in part by Ofcom. The programme, which aired on 4 October 2021, followed Bedfordshire Police as they carried out two linked investigations into drug supply and violence in Luton.
The programme contained footage of Mr F giving an interview to the programme makers and footage of him during a police raid on his home and as he was taken into custody. Mr F complained that his privacy had been unwarrantably infringed because he did not provide his informed consent for the footage to be filmed and broadcast.
Ofcom found that there had not been unwarranted infringement of Mr F’s privacy in connection with the obtaining of the footage of him and it dismissed that part of this complaint.
However, when it came to the broadcast of the footage, Ofcom found that Mr F had a legitimate expectation of privacy in relation to the footage shown of him in the programme and his privacy had been unwarrantably infringed. Ofcom recognised that the programme makers believed they had obtained Mr F’s informed consent for the broadcast. However, Mr F withdrew any consent which he had previously given for footage of him in which he was identifiable, on 23 September 2021. There therefore was no informed consent at the time of the broadcast. Mr F’s legitimate expectation of privacy was not outweighed by the public interest or the broadcaster’s right to freedom of expression and the audience’s right to receive information without interference.
Rule 8.1 of the Ofcom Broadcasting Code says any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted. Rule 8.5 states that any infringement of privacy in the making of a programme should be with the person’s consent or otherwise be warranted. Programme makers sometimes do not get consent to record or to broadcast but can still, depending on the facts, proceed where this is warranted. The individual’s right to privacy must be balanced against the competing rights to freedom of expression of the broadcaster and the public interest in publication.
In this case, Ofcom held that the programme disclosed highly sensitive information about Mr F, there was a significant intrusion into Mr F’s private life, Mr F had been identified without his consent and the broadcast was not justified in the public interest because Mr F’s privacy rights outweighed the rights of Channel 4 and the audience. As a result, there was an unwarranted infringement of Mr F’s privacy in the programme as broadcast.
Copyright – Dancer’s copyright claim against Sir Andrew Lloyd Webber fails
Lord Andrew Lloyd Webber and lyricist Sir Trevor Nunn have won a copyright case in the UK against a former dancer who claimed that he had written the song Memory from the musical CATS.
The dancer, Philip Christian, claimed another dancer overheard a recording of Christian’s song while in a rehearsal which he then memorised and recited to Webber. Christian said he owned the rights to the lyrics and musical score of Memory and was entitled to receive royalties. Granting summary judgement against Christian, the judge held that the case was “fanciful and entirely hopeless, and this claim cannot be allowed to continue any longer”.
In England and Wales, copyright is infringed by a person who, without the permission of the copyright owner, does, or authorises another to do, any of the acts restricted by the law of copyright, such as copying of a copyrighted work. The key test for infringement under the Copyright Designs and Patents Act is whether a substantial part of the work concerned has been copied.
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