Fraser-Woodward Ltd v British Broadcasting Corporation Brighter Pictures Ltd

Fair dealing for criticism or review under Copyright, Designs and Patents Act 1988, section 30(1), is assessed in context. Criticism may concern the copyright work, another copyright work, or the ideas and social or moral implications underlying either. No separate requirement exists for a particular degree of specificity or for showing that the criticism could not have been made without reproducing the work. Fairness depends on the overall impression, including the user’s real purpose, the amount and manner of reproduction, any pretence, and prejudice to the copyright owner’s legitimate interests. For photographs, substantial visual reproduction may be necessary to make the criticism intelligible. Authorship may be sufficiently acknowledged by implication and by a clear contextual carry-over. Incidental inclusion under section 31(1) depends on why the work was included in the relevant context.

Fraser-Woodward owned copyright in 14 photographs of members of the Beckham family. Brighter Pictures used images of newspaper pages containing the photographs in a BBC programme, Tabloid Tales, concerning celebrity publicity and tabloid journalism.

The defendants relied principally on fair dealing for criticism or review under section 30(1) of the Copyright, Designs and Patents Act 1988, and alternatively on incidental inclusion under section 31(1). The claimant alleged infringement, insufficient acknowledgment, unfair dealing and flagrancy warranting additional damages under section 97(2).

The central issues were whether the uses constituted criticism or review, whether the dealing was fair, whether authorship was sufficiently acknowledged, whether two appearances fell within incidental inclusion, and whether additional damages were available.

1. Fair dealing and criticism or review. The claim was dismissed. The first 13 photographs were used for criticism or review of the photographs and/or the tabloid press and magazines as works of a particular kind. Criticism may extend to ideas, philosophy and social or moral implications underlying a work. The other work need not be identified with particular editions or publications, but it must be a “work” within section 1 of the Copyright, Designs and Patents Act 1988; subsisting copyright in that other work is unnecessary.
2. The court rejected a requirement that criticism must go beyond a bare comment or contain a particular degree of specificity. Context is decisive. It also rejected any necessity test: section 30(1) does not require proof that the point could not have been made without reproducing the copyright material.
3. Fairness. Fair dealing is a matter of overall impression. Relevant considerations include the user’s real motive, whether the use is genuine criticism or a pretence, the amount and manner of reproduction, the commercial purpose, and whether the use conflicts with normal exploitation or unreasonably prejudices the author’s legitimate interests. Photographs require particular care because criticism may require reproduction of most of the image. The brief, contextual and non-lingering use was fair. The claimant did not prove actual or significant commercial damage.
4. Acknowledgment. Section 178 does not require an express identification of the author. Identification may be implied, provided it is sufficiently apparent and does not require detective work. Earlier attribution and the surrounding context could carry over to later appearances.
5. Incidental inclusion. The question under section 31(1) is why the photograph was included in the relevant work, assessed objectively in context. The third appearance of Beckham 12 was not incidental because the photograph formed part of the programme’s treatment of the headline and story. Beckham 14 was incidentally included because the programme selected the headline, and the small photograph appeared merely because it was printed within it.
6. There was therefore no infringement. If infringement had been established, additional damages under section 97(2) would still have been refused: the defendants acted on an honest belief in their legal entitlement, and the evidence did not establish flagrancy or conduct sufficiently serious to justify such damages.