BY Gaelyn Scott
intellectual property (IP)
The copyright woes of Meghan Markle
South African readers will know that Meghan Markle was a recent visitor to our shores. Meghan’s husband Prince Harry came too, but people weren’t too interested in him. As far as I am aware, Meghan had no problems with the South African press. She also had no copyright issues in South Africa. So, a far cry from what she is experiencing right now in the UK, her adopted home.
Meghan is now involved in legal proceedings with the Mail on Sunday, a major British newspaper. The case relates to the publication by the newspaper of parts of a hand-written letter that Meghan sent to her estranged father, Thomas Markle. It appears that Thomas Markle handed a redacted version of Meghan’s letter to the newspaper (apparently for no payment) in order to counter or correct hurtful claims that had been made about him in an article attributed to friends of Meghan.
According to news reports, Meghan claims that the newspaper deliberately omitted a critical part of the letter in order to portray her in a bad light. In this part of the letter Meghan apparently showed concern about the well-being of her father. The reports also suggest that the newspaper omitted bits that would have portrayed it (the paper) in a bad light; this relates to parts of the letter where Meghan was very critical of the British press. Meghan claims that the newspaper failed to warn her that it was planning to publish the article. Adding fuel to the flames is the claim by Prince Harry that this is all very reminiscent of the way his late mother, Princess Diana, was treated by the press.
The case is based on various grounds, invasion of privacy, right to a private life under the Human Rights Act, and breach of data protection legislation. But interestingly, infringement of copyright has also been raised. As far as I am aware, this is unusual in this kind of case but it is quite a smart move, because a copyright infringement claim might be relatively easy to prove.
Copyright law in South Africa is not too far removed from copyright law in the UK. If a case like this were brought in South Africa it would be brought under the Copyright Act 1978. The first point worth noting is that a letter is protected under a category known as “literary works”, a category that would perhaps better have been described as “written works”, given that no literary merit is required, even product manuals are classed as literary works. Meghan, as the writer of the letter, would be both the “author”, the person who “first makes or creates” the work, and the first owner of the copyright.
Copying the work or a substantial part of the work without the copyright owner’s permission is an infringement. The term “substantial part” does not relate to length or volume but rather substance, and it seems very likely that a South African court would hold that copying had occurred here.
The law does provide a “fair dealing” defence for newspapers and this says that the copyright in a literary work is not infringed if it is reproduced for the “purposes of reporting current events in a newspaper” but it does go on to say that the newspaper cannot use the whole or a substantial part of the work, and that it must acknowledge the source. It is this issue that would probably be most hotly contested in any court proceedings. Incidentally, Meghan did apparently take the unusual but prudent step of keeping a photocopy of the hand-written letter she sent to her father, so comparisons will be possible.
It has also been announced that Jennifer Lopez is being sued for copyright infringement by a company called Splash Entertainment. This matter relates to Jennifer’s decision to post a certain photo on Instagram. The company claims that it owns the copyright in this photo. In this case, the claim is clearly commercially-based, with the company seeking damages of USD150 000. It argues that the Instagram posting harms the existing and future market for the original photograph. There is an argument between the parties about whether a posting on Instagram is commercial in nature, with the company claiming that Lopez, who has 93 million followers, clearly uses her Instagram feed for commercial purposes.
The interesting aspect of this case is that the photo is in fact one of Jennifer Lopez. Applying South African law, photographs are protected under the broad heading of “artistic works”, and author and first owner of the copyright in a photograph is the person who is “responsible for the composition” of the photograph. This means that it is the photographer rather than the sitter who owns the copyright.
Copyright… it’s worth remembering!
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