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Megan Markle

Royal Copyright

Recently, a former actress best known for her role as a lawyer in a hard-hitting law firm made waves by filing her own, personal high-profile lawsuit. Meghan Markle, former Suits actress and current Duchess of Sussex, brought a court action against Associated Newspapers, the parent company to some of the largest tabloids in the United Kingdom, after it published a letter she had written to her father last year.

Her claim involves issues of copyright infringement, among other assertions of invasion of privacy. There is no doubt this case is salacious – but does her claim of copyright infringement have merit?

Copyright Infringement

A private letter can be protected by copyright laws. It can be classified as a literary work under the Copyrights, Designs and Patents Act 1988. As the original author of the letter, the Duchess is the owner of the copyright, and can prevent third parties from publishing or disseminating the work. Infringement of a copyright would include copying or issuing copies to the public - or publishing in a newspaper. In the event the court decides that there has been an infringement of copyright on her letter, then the Duchess could be entitled to damages and injunctions against the publication for future publications. She may also seek an order for delivery up, meaning the publications would have to relinquish the letter and any copies they may have.

Defences

There are a number of defences to claims of copyright infringement. One exception is for reporting current events, as long as the use of the material is fair. To decide if the use is fair, courts often look to see if the work has already been published elsewhere, or if it is confidential. The papers will likely raise this defence, and could further claim that publication of the letter was within the public interest. As for the defence of reporting current events, the publisher’s motivation for distributing the letter will be highly relevant when it comes to determining the defence of fair dealing in reporting. The extent of the use of the item must be justified by the informational purpose. In other words, the papers’ publication of the letter should be proportional to the reason for sharing the information. As for the paper’s defence of it being within the public interest, you have to wonder what public interest would be on a private family matter that has no bearing on national security, public funding or the like. Satisfying the public’s appetite for drama and gossip would probably not clear the hurdle for reporting on a matter of public interest.

In fact, if past is precedent, the newspapers will be hard pressed to demonstrate clear public interest in the release of this letter. In 2006, the Prince of Wales also sued Associated Newspapers on similar grounds when contents of his private diary were released. The court agreed that the publication of his diary was copyright infringement, despite the publication arguing that it was a matter of public interest. The court determined that the publication of the contents of the diary itself was the event of public interest, rather than for reporting on current events. In other words, leaking private documents in an attempt to create news about those documents is not a matter of public interest.

                If you have questions on matters of copyright or other IP issues, contact Andy Harris, partner of our IP, Data and Contracts team at andy.harris@mbmcommercial.co.uk.

MBM Commercial has advised P D Neurotechnology (PD...

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