Dispute Resolution

Meghan Markle, the Duchess of Sussex, is taking legal action against dmg media for publication of her private letter. Whilst the royal family is no stranger to disputes with the press around their privacy, Meghan has added another element to her claim by asserting her intellectual property rights in this written work.

Litigation over a letter

dmg media, formerly Associated Newspapers, publishes such titles as Daily Mail, Metro and the Mail on Sunday – the latter publication being the subject of the dispute.

In February of this year, the Mail on Sunday published excerpts of a letter the Duchess of Sussex sent to her father. Unhappy with her private correspondence being shared without her consent, the Duchess of Sussex has raised an action against the paper’s publishers in the English High Court.

Alongside allegations of misuse of private information and breach of the Data Protection Act 2018, Markle’s lawyers are also alleging copyright infringement.

Whilst possibly included more to bolster the case, this raises interesting questions around what constitutes a copyright work and how and when copyright operates to protect the rights of the owner.

Copyright considerations

Copyright protects original literary, dramatic, musical and artistic works. Similarly to a novel or song lyrics, a letter such as Meghan’s would be a literary work.

The next step is to consider what rights a copyright owner holds and what is infringement.

A copyright owner – here Meghan – has exclusive rights to copy their work and issue copies/communicate their work to the public. If a third party does so, without the author’s permission, this is likely to be copyright infringement. It does not matter if the infringing party has not used the whole of the work and it is enough for them to have copied a substantial part.

There are limited circumstances in which certain “permitted acts” will not infringe, such as non-commercial use, criticism, review and reporting current events (upon which dmg media may rely). However, these exceptions will only apply if use of the work is deemed ‘fair dealing’.

Fair dealing is specific to the facts of each matter but takes into consideration the extent of the work used and if that was necessary for the intended purpose. These are unlikely to apply here as this was in a commercial newspaper and there is doubt as to whether there was any need to or public interest in printing private correspondence.

Remedying wrongdoing

Most commonly in cases of copyright infringement the owner will seek to stop their work being used as well as recovering damages for any loss they have suffered or would suffer from its use.

This could be by seeking removal of their work from publication and/or for all copies of any infringing materials to be destroyed.

Pursuing the press 

It will be interesting to see whether Meghan’s legal team pursue the copyright element of her claim or if the focus will be mainly on the privacy aspects. Either way the claim put forward is an important reminder for authors of copyright works to be aware of when such protection applies and when they can enforce it.

 

Cara McGlynn

Solicitor at Brodies LLP
Cara joined the Business Dispute and Asset Recovery team in September 2017 and specialises in dealing with and resolving IP, IT and technology related disputes, across a variety of sectors. She has experience of representing both corporate and individual clients in an array of Sheriff Court and Court of Session actions.

Cara has worked with a wide range of clients and adopts a friendly, commercially-focused approach tailored to the clients’ objectives and priorities.
Cara McGlynn

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