Unless you have been totally absorbed by Brexit, you will have seen the Press speculations since February over whether Meghan, the Duchess of Sussex, would take legal action against the Mail on Sunday, for publishing excerpts from a private letter that she had sent to her father in August 2018.
This speculation was finally put to rest on October 1, 2019, with the announcement that the duchess was commencing proceedings in the High Court for, among other things, infringement of copyright.
This is not the first time that the royal family has threatened legal action in this way – in 2003 the Palace considered legal action, again for breach of copyright, against Paul Burrell, the former butler to Princess Diana, who included private letters from various members of the family in his memoirs.
Many members of the public will be unaware that while the letters themselves may be properly owned or acquired by media companies, publishing houses, or private individuals, the actual contents of these letters (the words used) remain the property of the author.
It will not, however, come as a surprise to those in the art world, particularly curators of exhibitions who must constantly wrestle with copyright obligations when wishing to advertise works on display.
Put simply, although you may own the work itself, ownership of the copyright – the ‘intellectual property’ – in the work is an entirely separate question. Care has to be taken not to infringe such rights.
However, there is one very helpful exception; Section 63 of the Copyright Designs and Patents Act 1988 states ‘it is not an infringement of copyright in an artistic work to copy it, or to issue copies to the public, for the purpose of advertising the sale of the work’. Very helpful to galleries and dealers.
But what you cannot do is then sell that image, the copy you have made, if you do not own the copyright in it – the very same Section 63 stops you ‘dealing’ in the image itself. It is also important to say that the prevailing view is that the Section 63 automatic exception does not extend to allowing website advertisements.
Artists tend to cherish their rights, so the way around it is to seek permission or obtain a licence from them.
Famous artists who have had claims made against them for infringing other artists’ copyright include well-publicised claims against Damien Hirst, and, quite recently, Jeff Koons.
Many of the more interesting claims concern infringement of what are known as ‘moral rights’ – similarly protected in England under the 1988 Act.
One good example of this was where a sculpture was commissioned by a company in Sydney. Most unfortunately, the sculpture did not fit into its allotted space, so the company that commissioned it just chopped away the upper bits. This chopping was held to be an infringement of the aggrieved sculptor’s moral rights.
So, if you are going to trim a work of art, make sure the artist doesn’t get wind of it.
Milton Silverman is senior commercial dispute resolution partner at Streathers Solicitors LLP, London.