Author: Nathanael Young

According to the Guardian, Brian Belo has begun court proceedings against ITV and Lime Productions for copyright infringement and breach of confidence. It appears he is claiming that The Only Way is Essex is based on an idea he had developed with Sassy Films and Massive TV, co-claimants with him in the litigation.

Given the subject matter, the case seems sure to be in the headlines until it is resolved. However, the legal difficulties in bringing a claim over ideas for shows should not be underestimated. Copyright infringement applies not to ideas themselves, but to the tangible expression of ideas – something the Americans call the idea/expression dichotomy. In the past, only highly developed ideas – such as preliminary drafts of final works – have been found to be protected in this way.

This issue has put paid to many cases of copyright infringement – among the most famous being the case over the Da Vinci Code, and the plot elements its author had borrowed from an earlier work called the Holy Blood and the Holy Grail.

Turning to TV shows, the classic case on copyright infringement is Green v NZ Broadcasting Corporation [1989] 2 All ER 1046. In that case, Hughie Green objected to a copy of his ‘Opportunity Knocks’ show being aired in New Zealand. However, the elements he alleged were copied were the title, certain catch phrases and other practices in relation to the show. The Privy Council held this could not be breach of copyright, and TV show producers have rarely relied on copyright ever since.

In confidentiality however, the picture is quite different. TV shows are frequently protected by the use of ‘production bibles’, supplied under confidentiality agreements, containing the sort of know-how that goes into the show but cannot be readily identified by watching it. This makes it hard for copycat shows to air without obtaining the confidential information and ending up on the wrong side of the law.

Indeed, before the show is first aired, confidentiality can offer still greater protection. The ideas, characters, format and flavour of the show are not yet in the public domain, and can all be covered by well drafted confidentiality agreements. This is certainly the route that any budding TV show producer would be advised to go down.

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For further information or to discuss a particular matter or situation in more detail, contact Nathanael Young at our St Albans office by email at nathanael.young@salaw.com or on 01727 798000.

© SA LAW 2012
Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them. You are recommended to obtain specific advice in respect of individual cases.

Author: Nathanael Young

There has been plenty of sport in court over the last few months, what with super-injunctions, Sky decoders and match fixing. Now a libel case brought by former New Zealand cricketer Chris Cairns has hit the headlines.

As with many recent libel actions, it all started on Twitter. In this case, the offending tweet was posted by Lalit Modi, former chairman of the Indian Premier League, accusing Cairns of involvement in match fixing.

The tweet was soon posted on Cricinfo, a cricketing website with a worldwide audience. After Cairns objected, Cricinfo swiftly made peace – they withdrew the report, apologised and paid damages.

Modi took a different route. He defended on the ground of justification, calling evidence from a number of Cairns’s team mates in an effort to show the allegations were true.

In his judgment however, Mr Justice Bean was scathing about the reliability of some of Mr Modi’s witnesses, and accepted Mr Cairns evidence, noting he had emerged ‘essentially unscathed’ from prolonged questioning.

In a particularly interesting move, the judge then ruled that damages would be increased from £75,000 to £90,000 in view of the ‘sustained and aggressive’ attack on Mr Cairns by the Mr Modi’s lawyers. Apparently the words ‘liar’, ‘lie’ and ‘lies’ were used 24 times in Modi’s barrister’s closing speech.

The case is yet another reminder of the dangers of careless tweets. It is also a reminder of the dangers of trying to justify allegations in libel cases. Although the defendant only needs to prove on the balance of probabilities that they are true, not all attempts at justification survive the intense scrutiny of trial. When they go wrong, they can then lead to additional damages, and certainly far more costs than a quick early settlement.

It seems that the damages awarded may yet be the subject of an appeal. However, the principle that vindictive behaviour can aggravate damages is a long standing one. Defendants to libel trials should be warned: justification is not for the faint-hearted, nor for those without the greatest confidence in their evidence.

Author: Victoria Thomson

SA Law’s outstanding work for commercial and private clients has been recognised by the Chambers and Partners 2012 Guide to the UK legal profession.

SA Law has been recognised as a leading regional practice by independent legal research bodies Chambers & Partners and The Legal 500, in addition to achieving The Law Society’s Conveyancing Quality Scheme accreditation.

A leading publisher of legal research, Chambers conducts thousands of interviews with lawyers and their clients every year to identify regional leaders around the world.
All of SA Law’s departments have been recognised as regional leaders in the Northern Home Counties, with Managing Partner Steve Ryan cited as a top tier lawyer: “These achievements are extremely important in a sector that suffers from fierce competition in a slow economy. Achieving recognised first class credentials in the marketplace has never been more essential.” Adds Steve Ryan.

To find out more about SA Law and how our dedicated team can assist your business, visit our website www.salaw.com

Author: Nathanael Young

Hot on the heels of the Advocate General’s opinion on the use of foreign decoders (well, 8 months later) the Court of Justice has now given its ruling on the issue. As expected, the Advocate General’s opinion has been followed, and prohibitions on using or selling foreign decoder cards have been held contrary to European law.

Although the judgment runs to 212 paragraphs, it has already been scrutinised and re-scrutinised across the EU. This is because, as mentioned in my previous blog piece, it strikes at the heart of the current licensing system used for football in the UK and elsewhere.

In principle, the Court held that national legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services. It also held that a system of exclusive licences is itself contrary to competition law if the licences prohibit the supply of decoder cards to television viewers outside the licensee’s territory.

However, in an odd quirk, the Court also held that the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and certain other graphics fell into a separate category. These works could only be used with authorisation from the rights holder.

Although pub owners can protect themselves from this exception by only screening games from kick off, rights holders are no doubt looking at whether they can use this additional material in an effort to preserve the status quo. However, given the fundamental antagonism in the judgment towards the notion of partitioning rights, and towards artificial price differentials resulting from such partitioning, this may be hard to achieve.

Whilst broadcasters and rights holders will be disappointed at the decision, it was hardly unexpected after the Advocate General’s opinion. They must therefore have given some thought to contingency plans, and to new business models to cover just this eventuality. Whether these will involve the pan-European licences the Advocate General seemed to envisage is another question. So too is the issue that has the widest interest – the effect of such new models on football itself.

The importance of this decision on football has resulted in considerable media attention already, with much speculation as to whether the result will be business as usual or fundamental change. However, the case is worth noting for other reasons as well. Apart from anything else, it is a vivid illustration of how the importance of a single market and competition across member states is hard-wired into European law. Intellectual property rights have not proved sacrosanct when they have come into conflict with competition law, as even Microsoft has found to its cost.

Author: Julie Gingell

You may have seen in the press recently that The Original Bucks Fizz (which includes three of the original band members (Cheryl Baker, Mike Nolan and Jay Aston) and Bobby G -real name Robert Guppy, who performed in the group called Bucks Fizz, are currently involved in a trademark dispute. Guppy owns the trademark Bucks Fizz having registered it in 2001.

The hearing was triggered when Baker, Nolan and Aston tried to trademark their band name “The Original Bucks Fizz” and former band mate Guppy objected. This led to a counter objection from The Original Bucks Fizz over Guppy’s use of the “Bucks Fizz” name, stating that Guppy’s band had caused confusion and disappointment among fans. Guppy felt he could claim that his band was the original because he had a direct connection to the group that won the 1981 Eurovision Song Contest. He also argued that bands often change their line-up giving examples of The Drifters and The Supremes.

So, what are the lessons for businesses in this squabble between former band mates?

1. Make sure you identify and protect your intellectual property assets.
2. Before you register your trademark check the trademark register to make sure that you are not in breach of an already existing trademark.
3. Ensure that when you register a trademark the correct party/person is named as the owner of the intellectual property.

The Intellectual Property Office are due to give their decision by August 26th.

If you would like more information or advice relating to a specific matter, please do not hesitate to contact our team on 01727 798000 or by email at info@salaw.com.

© SA LAW 2011
Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them. You are recommended to obtain specific advice in respect of individual case

Author: Nathanael Young

Some people have them, but you don’t know who. Some people want them, but don’t want you to know they want them. Some people know about them, but aren’t allowed to tell you about them. Welcome to the strange world of super-injunctions.

First coming to popular attention in the wake of the Trafigura affair, these supercharged legal injunctions raised amazement and concern in equal measure. At first, particularly after John Terry’s failed bid to cover up an affair, it seemed that they were going to be rarely sought and even more rarely granted.  A year on, however, and it seems their rise is unstoppable. Just what can these court orders be, that have got everyone from junior journalists to the Prime Minister talking?

At the heart of each super-injunction is an ordinary injunction – an order stopping someone from doing or saying something.  However, it is also accompanied by reporting restrictions. Thus the nature of the order, or the identity of the person applying, or even the fact an order has been made, may all be kept secret.  Such super-injunctions often concern the secret misdemeanours of celebrities, who argue that their right to privacy under the Human Rights Convention will be infringed if their private lives are laid bare. They argue that the purpose of their application will be defeated if the fact they have applied for an order is revealed,.

The legal procedure necessary to make such orders is not new, but the privacy law that has led to their popularity is another story. Although often stigmatised as a ‘judge-made’ law, it has in fact arisen out of the Human Rights Act 1998, which required courts to give effect to the European Convention on Human Rights. This has been done by adapting the much older principle of breach of confidence. Now anyone can stop disclosure of matters – even where there is no breach of confidence in the normal sense – if they have a ‘reasonable expectation of privacy’. If this right conflicts with the right to freedom of expression, the two rights are balanced against each other, with neither right automatically preferred before the other.

To some, these developments are a necessary check on the abuse of press power; aimed at those who specialise in turning scandal into profit. They argue that academic lawyers had been calling for a right to privacy in English law for years, and that freedom of expression can be amply protected by the court’s balancing exercise.

To others, however, privacy law and the rise of the super-injunction are a worrying attack on open justice and freedom of expression; allowing the rich and powerful to suppress their critics. They point out that celebrities use the press to promote their own image, but are the first to object when the press turn against them.

Certainly, as the balancing exercise has been applied in practice, the courts have been reluctant to accept that the public have a genuine concern in the lives of celebrities. As the judges frequently say: what interests the public is not necessarily in the public interest.

Unfortunately, it is not clear that such unashamedly elitist distinctions are adequate in practice. Newspapers like the Guardian and the Telegraph – hardly known for scandal-mongering – are at the forefront of criticism of these injunctions. Having some kind of privacy law may be welcome, but private hearings and secret orders are a heavy price to pay.

As the proliferation of these orders has exceeded all expectations, the trickle of concern has become a flood. The issue has now been raised at the highest levels, and with a commission on the subject due to report soon, it would be easy to assume that some kind of controls must be introduced.

In the meantime, however, celebrities still seek super-injunctions, and courts continue to grant them. If these drastic orders do become rarer, it will not be for lack of interest.

Author: Nathanael Young

Football may be a global game, but not for Premier League broadcasters.  English top flight matches are broadcast across the world, but each broadcaster will sign up to an exclusive licence covering its own territory. BSkyB has the UK patch , and have paid handsomely to the Premier League’s marketing organisation for the privilege.

Central to this system is a decoder card, which decrypts the signals which are transmitted by the broadcaster issuing it. Under the terms of each broadcaster’s licence, the circulation of their decoder cards outside their own territory is restricted. The intention was to ensure that only Sky decoder cards were available in the UK, and thus only customers of Sky would be able to see live transmissions of Premier League matches.

Given the high price of the UK decoder however, a market developed in imported ones. According to the Premier League, this was illegal. Allowing importation and use of foreign decoders would undermine the territorial exclusivity they offered to BSkyB, and would have a major effect on their revenue.

This may now change, however, after pub landlady Karen Murphy’s case was referred to the European Court of Justice. In her opinion to the court, the Advocate General has advised that territorial exclusivity in broadcasting is contrary to European Law, and has a serious effect on the freedom to provide services across the internal market. Nor did she accept that exploitation of intellectual property rights was undermined by allowing use of foreign decoders. Since the foreign decoders were paid for, the only issue was the price difference across EU Member States. It was part of the function of the internal market to ensure such price differences were reduced by trade.

The effect of this opinion is still unclear. The Advocate General’s opinion is not binding on the ECJ, although it is highly persuasive, and is followed about four times out of five. Thus it will not be until after the ECJ’s actual verdict that we will know for sure if the legal landscape has changed.

However, the opinion is without doubt a major blow to the Premier League, and to Sky. The financial consequences of ending territorial exclusivity would have a huge effect on revenue, and this would in turn send ripples through football. For consumers on the other hand, it could see the price of subscriptions slashed, as pan-European competition takes off.

For intellectual property lawyers, one issue will be how far any verdict extends. There has always been a tension between EU competition law and intellectual property rights, but despite some suggestions in the media, this case seems unlikely to change things fundamentally. Whilst the Premier League’s case relied upon intellectual property rights, broadcasting live matches is not quite in the same category as writing novels or songs.

Not that there is any lack of creativity and imagination in football, of course. Just think of the diving.

Author: Nathanael Young

Twitter troubles are already a staple of the celebrity press, but Courtney Love has now given them a new twist.  After a dispute over payment for clothes, the singer is said to have called a designer a  ‘drug pushing prostitute’, and was sued after the tweet was picked up by tens of thousands of fans.

Although the case will be dealt with in Los Angeles under US law, it still highlights the way in which changing technology has an impact on defamation law the world over. Defamatory statements are now as likely to be in blogs, message boards or social media as in traditional newspapers and magazines.

In addition, it provides a salutary reminder of how dangerous new media can be. When angry rants were only oral, English law classified them as slander rather than libel, and made it much harder to sue. Now, even the most momentary anger can lead to a libel claim, with comments  published to thousands at the touch of a button. It is unlikely Love made a habit of counting to ten before tweeting, since she announced she was leaving Twitter in October after posting photographs of herself intended only for her boyfriend.

Let users beware…

Author: Nathanael Young

Attack and Counterattack

Recent news stories have highlighted the lengths FIFA are prepared to go to in protecting its brand.

Last Monday’s Holland v Denmark game saw 36 female supporters wearing orange mini dresses participating in an ambush marketing stunt for the Dutch beer brand Bavaria.

Ambush marketing, the practice of finding a way to promote a brand at a high profile event without paying a sponsorship, has long been a marketing strategy of Bavaria. At the 2006 world cup in Germany, 1000 fans wearing branded underwear were denied entry to a Holland game, and more recently it has been targeting the Dutch national team matches.

FIFA has promised to come down hard on any brand trying to highjack the tournament and this was the case last Monday. The group of women were ejected from the stadium and two of the 36 were later arrested. In addition to this, the ITV pundit Robbie Earl has been sacked by ITV as it has emerged that some of the tickets used by Bavaria were from the ex-Jamaica and Wimbledon midfielder’s  allocation;  which he was  prohibited from redistributing to third parties.

Logo or No Logo

With the world cup now in full swing, businesses around the country have included references to the event in their advertising and promotional activity in a bid to cash in on its popularity. Some of those are official sponsors, who have paid millions to be able to do so; however, a considerably large number of businesses haven’t paid for the privilege. They simply seek to associate their business  with the  pride and passion that the tournament evokes, with the ultimate aim of increasing sales. However it does come with some risks attached.

Many business may not be aware of the extent to which FIFA have rights over and above ordinary trademark or copyright protection in South Africa.  FIFA has every motivation to stamp out such practices, which threaten the sponsorship revenues from their official partners. It already has trademark protection over a number of words, like ‘2010 FIFA World Cup’ and images, such as its official emblem for the tournament. The host country has gone so far to keep FIFA and its sponsors happy, it has created a new list of prohibited marks under special legislation, even including the use of ‘2010’ on its own, which is not a trademark.

For businesses operating in the UK, the situation is rather less draconian.  However,  there are reports that FIFA has obtained a ruling against a sports bar near the Loftus stadium using phrases such as ‘World Cup 2010’.

Things to Remember…

The most important guidance is to always avoid the using of any FIFA artwork or branding – such as its logo or the ‘man kicking ball’ official 2010 world cup emblem. For more information and guidance about when you can cannot use World Cup related terms, FIFA has provided a Public Information Sheet which states what is acceptable and the terms of use.
Use of the term ‘World Cup’ or similar phrases is less likely to be an issue, although each situation is different, so it is important to take legal advice in order to avoid prosecution.

Author: Julie Gingell & Simon Walsh

It was widely reported last week that Unilever, the maker of Marmite, took steps to protect its brand by threatening legal action against the British National Party to stop it from using a jar of Marmite in its party political broadcasts.

The jar of spread appeared in a BNP video which featured on its website. Nick Griffin claimed that the BNP had not been responsible for this because it had, allegedly, been inserted by “one of the people to whom [the Party] had given the broadcast to review” However, he went on to indicate that the jar of Marmite had been added to the broadcast in response to Marmite’s “the Love Party and the Hate Party” advertising campaign which has been running on television, radio and the internet. The BNP claim that the “Hate Party” was based on itself. Mr Griffin said, “Although we are not responsible for whoever it was who inserted the Marmite jars into the internet version of the broadcast, we do see the amusing side, quite simply if you start a spoof you should expect to get spoofed”.

Unilever stated, “Neither Marmite nor any other Unilever brand are aligned to any political party. We are currently initiating injunction proceedings against the BNP to remove the Marmite jar from the online broadcast and prevent them from using it in future”.

The video clip has now been removed from the BNP website but is still available on YouTube.

The BNP was involved in a similar controversy back in March 2009 when the Manic Street Preachers’ hit “If You Tolerate This Your Children Will Be Next” was played over some of its web content. After pressure was applied by the Manic’s record label, Sony, the song was removed with the BNP claiming the song had been mistakenly streamed from the site.

Brand reputation is everything and in today’s high speed digital economy, you can see why Sony and Unilever were quick to move against what they understood to be infringements of their intellectual property rights. Years of investment in PR and brand development can be wiped out if your product/brand becomes associated with an offering that is perceived to be unfavorable. Both incidents demonstrate the importance of policing the use of your brands and products, especially on the internet, to ensure that they are not used for an unauthorised purpose.