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22nd July 2015

THAT salute


22nd July 2015

THAT salute

Headline news this week has been full of stories which have an IP aspect to them. Our weekly round up series focuses on THAT salute, Ashley Madison data hacking, Louboutin’s red soles and the lady who objected to the photo being taken of her bottom!

Putting the minefield of political and public relations issues aside, there has been much speculation as to whether the Palace might bring an action against the Sun for infringement of copyright in the video clip. The defence of ‘fair dealing for the purpose of reporting current events’ does not apply to photographs (and neither are they ‘current events’) and so this defence would be not available.

Copyright is always a tricky beast. The law that applies is the one that was in force at the time that the copyright work was created. The film was reputedly shot in 1933 and so the appropriate piece of legislation is the 1911 Copyright Act.

Prior to the 1956 Copyright Act, films were not protected by copyright. The 1911 Act mentioned cinematograph films (in section 1(2)(d)) but only in the context of being one form of the performance of literary, dramatic or musical work, but they were not protectable per se. So films of a factual or documentary nature (such as the Royal film at issue here) were not protected at the time. This of course did not matter then because presumably the film was made for purely private consumption.

The 1956 Act provided some retrospective protection by treating a film made before 1957 as a series of still images, each of which would be protected as a photograph. So once the 1956 Act had come into force in 1957, this piece of film would have gained protection as a series of photographs. This would seem to lead us to the next step which would ordinarily apply to copyright works, namely who was the author and when did he or she die?

Photographs created prior to 1 June 1957, Section 21 of the 1911 Act were afforded special treatment, namely that the term of protection was fixed at 50 years from the making of the original negative, and then ceased. This applied equally to published and unpublished photographs. What is more, although the film (reputedly shot in 1933 or thereabouts) would still have been protected under section 21 when the 1956 Act came into force, the transitional provisions (in Schedule 7) of the later Act did not change the provisions for photographs made before 1 June 1957, and so copyright in the film would have expired around 1983, some time before the current 1988 Act appeared on the statute books.

Hang on though, what about Crown Copyright? The 1911 Act, although not using the exact term, introduced what we think of as Crown Copyright, which lasted for fifty years from the date of first publication of the individual work. Since this film (we presume) has never previously been published, that would mean that the copyright term has not yet commenced (unauthorised publications such as that by the Sun newspaper don’t count).

But could the film attract Crown Copyright? The wording of Section 18 of the 1911 Act says: “Without prejudice to any rights or privileges of the Crown, where any work has, whether before or after the commencement of this Act, been prepared or published by or under the direction or control of His Majesty or any Government department, the copyright in the work shall, subject to any agreement with the author, belong to His Majesty, and in such case shall continue for a period of fifty years from the date of the first publication of the work”.

From the circumstances and individuals shown in the film, it seems probable that the person filming the goings-on was the King’s second son, Prince George, who later became King George VI. It is probable that he directed it to be prepared and its publication was certainly under his control (or that of the Palace) and so I think it could be argued that copyright protection has not commenced.

However I suspect that all this will be hypothetical, and that no such copyright case will ever be contemplated, let alone go forward to litigation. But if it did, the Sun would undoubtedly advance the little-developed defence of public interest under Section 171(3).

We thank the ‘17099 Copyright Blog’ for this blog.

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