EP32: Legal Eagles | Keith Mathieson and Paul Joseph

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In this episode you will discover…

• If you can include song lyrics in your book
• If you can use product placement in your writing
• If you can put real people in your novel
• If you can copyright an idea

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  • Mark Desvaux: Contact |Web Site | Facebook | Twitter

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EPISODE TRANSCRIPT (HIGHLIGHTS)

We got lawyered-up in this fascinating episode where we spoke to a pair of top entertainment lawyers: Keith Mathieson is an expert in defamation and privacy law, and Paul Joseph specialises in intellectual property cases, and we quizzed them on the pitfalls authors should look out for when writing. This all came about after Messrs Stay and Desvaux wondered about including song lyrics in their book…

Can you include song lyrics in a piece of fiction?

Paul: Copyright law says that someone creates something of their own artistic endeavour, and that would include writing a song lyric, or a poem, or whatever. They own that, and it’s an infringement of their copyright to copy that literary work, or a substantial part of it, which is judged either quantitively, ie: you copy a lot, or qualitatively; you take the important pieces.

Essentially someone who writes a song has copyright in it. If you were to copy a section of that out then that’s an infringement.

You might have seen a lot of use of it in the eighties, but what’s hard to tell from the outside is what sort of consent they had from the songwriters. If you have consent because you agreed to pay them money, or credit them, or they just like having their lyrics in a book, then (there’s) nothing to stop you there. How large would your use need to be, to be an infringement? Certainly the law over the last ten years has been clarified, generally based on European Court of Justice decisions, that even nine, ten, eleven words, maybe shorter if it’s an artistic work, can constitute protectable copyright work, and therefore it can be an infringement to copy that.

Product placement: Our novel features real brands – such as the wonderful Mark’s and Spencer’s Caterpillar Cake – what are the rule on featuring real brands in novels?

Paul: You’re coming at product placement from the other side of the equation. Normally, in a movie where you have product placement — James Bond drives a BMW or whatever — that’s because the brand has paid to have their brand in the movie. This is the other way round: you’re saying you’re writing about an everyday life situation, someone’s eating a Caterpillar Cake, are you allowed to refer to it? You are.

There’s nothing wrong with referring to a product. It’s very unlikely you would ever have a product name that’s long enough to have copyright in it.

If you were writing a book with pictures in, as soon as you start illustrating your Caterpillar Cake, that could be a copyright infringement of the look and feel of that product. If you were to use a brand in a way that it appeared you were trying to free ride off the goodwill in their brand, then you start coming into trademark infringement territory. So, if you were to write a book about Adidas trainers and if it looks like the book has been sponsored by Adidas then you start running into problems.

Referring to brands in an incidental way is just part of the world you’re creating. That’s fine.

If someone was to choke to death on a Mark’s and Spencer’s Caterpillar cake, would we be in trouble then?

Keith: It’s unlikely. Theoretically, if people understood that bit of the novel to be suggesting that if you were to go out and buy a Caterpillar Cake from Mark’s and Spencer’s you might end up choking on it, then there could be a potential defamation claim. But that would be a pretty far-fetched interpretation of one episode in a work of fiction. The reality is if you choose to use the Caterpillar Cake as an instrument of death for that particular character you’d probably get away with it legally.

Context is important, then?

Keith: Context is very much the watchword when it comes to defamation. If I just talk more generally about defamation in fiction: whereas lawyers like to wind people up by making them think that terrible things are going to happen, I can give a fair degree of comfort to people who write works of fiction.

Generally speaking, it’s pretty hard to libel people in works of fiction.

It’s much more common in non-fiction, although even then book publishing is a much less risky field of publishing than, for example, newspaper publishing where I spend most of my time defending tabloid and other newspapers against libel and privacy and similar claims. Book publishers don’t get sued anything like as often as other publishers, for example, social media, newspapers, broadcasters and so on. The reason for that is, while you have deadlines, the deadlines are generally more relaxed than they are in newspaper publishing, so you have more time to check things. Because you know that it’s a non-ephemeral form of publishing, people take much more care with books to make sure that they get things right. A lot of the libel problems that arise with other forms of publishing arise because people don’t have time, or they don’t make time, and they get careless.

Going back to works of fiction, if you are going to held liable for defamation, you’re almost certainly going to be doing something deliberately.

If you choose to use your work of fiction as a means of getting back at your enemies, if you decide to name your principal character after your least favourite headmaster, for example, then you’re asking for trouble.

You’re not going to be able to say ‘It’s a work of fiction, so that’s my defence.’ If, in the context of which people read it, people would understand that you had called that character because it was your headmaster and that headmaster is identifiable, if he’s a living person — if he’s dead, you’ll be okay, because the dead cannot be sued for libel — and people could understand that reference and that character in your novel to be a reference to him, because they might well be able to draw a connection between the two of you, then you could be in trouble.

If you’re going to choose real people to model your characters on, make sure they’re dead.

If they’re still living then potentially you have a problem. Having said that, even then it would only be defamatory if the context permitted people to think I’m moving out of the realm of fiction, now he’s telling me something about a real, living person. The instances in which this has happened in practice are pretty rare. There was a case involving Jilly Cooper, which prompted a libel action. I think it was settled fairly cheaply but it caused a bit of inconvenience for all concerned. She happened to choose a name — entirely accidentally, this was not any kind of deliberate act on her part, or on the publisher’s part — for a character in her book who was the director of a TV company, and he had done various disreputable things in the novel. I think he’d had an affair. The name she had chosen was very similar to the name of a real life director of a real life TV station, and worse than that the name that she had again quite coincidentally chosen for the TV company in her novel was very similar to the TV company of which this guy happened to be a director. If you’re unlucky enough for that to happen to you, you can be libelled because defamation can be committed accidentally.

You don’t have to do it deliberately, you don’t have to know that you’re libelling somebody.

If a reader would simply identify a character in a novel as referring to a living person, then you could potentially be liable for defamation. How do you avoid that? Accidents will happen, it may be impossible to avoid it in every case, but if you’re choosing fairly routine names you should be fine. If you’re talking about George Smith, well there are so many George Smiths nobody’s going to think you’re actually referring to another George Smith, but if you choose a more unusual name then potentially you could be liable, so it’s best to check through the internet whether there are people who happen to bear that name, if they’re clearly nothing to do with your character, if they don’t have any kind of shared characteristics, you should be fine. If they do, as in the Jilly Cooper incidence, then you could potentially be in difficulty.

You said the dead can’t sue for libel, what if, for example, I wanted to write about Churchill and paint him in a less than flattering light? Can his estate object to that?

Keith:  No, there’s nothing the estate can do from a defamation point of view. In fact, I can’t think of any legal remedy that they might have in that case. With historical fiction, or introducing historical characters, or even the names of historical characters into your fiction, you should be on safe ground.

If you’re writing about a real person, would you need to obtain their life rights?

Keith: Just to clarify: this is a work of fiction involving someone who’s real?

Yes. For example; Keith Richards from the Rolling Stones…

Keith: There really isn’t concept of ‘life rights’. You would be taking a number of risks if you chose to write about the real Keith Richards in a fictional way, because people are bound to think he (the author) is describing aspects of Keith Richard’s life and character. They’re going to think that you’re talking about Keith Richards. The fact that it’s a work of fiction is not really going to help you. If it’s very favourable to Keith Richards, if you’re saying lots of nice things about him, you don’t need to worry because the essence of a defamatory statement is it’s something that damages a person’s reputation, and it has to do so in a way that causes that person serious harm. If you were to say that Keith Richards doesn’t always wears his seatbelt, then that’s not going to be actionable in defamation. You could probably take the example of Keith Richards and go quite a long way because he’s a fairly rackety character, so the drink, drugs, womanising, all that kind of stuff would probably be fair game for that particular example. But other things, such as if you were to suggest, for example, that Keith Richards had engaged in domestic violence I think you would be taking a great risk. Why are you calling this character Keith Richards, why are you putting him in a band called The Rolling Stones if you’re not intending to say something about him? You certainly would be taking a risk with that kind of scenario.

We’ve named some of our characters after some of our guests on the podcast. Is that a bad thing to do?

Keith: Paul Joseph is a sufficiently common name, you be okay with him. But my name, Keith Mathieson, you might be in slightly more dodgy territory. It depends on what you say: if you say defamatory things, nasty, serious things about somebody, then yes it could potentially get you in trouble, because some people who read it might know me — it’s just possible — they might think he’s being described as a libel lawyer and he’s called Mathieson, hang on that must be referring to Keith Mathieson. There is potentially a risk there.

We’re also using real places in our book, including Glastonbury and the festival. Would that cause any issues?

Keith: From a libel point of view, no. It should be absolutely fine. The thing with libel, just to recap, is that it depends on the context. You would have to have a reasonable reader reading the novel and going out of the fiction box and thinking, ‘Okay he’s moved from just telling me a story to telling me about a person I can identify and he’s doing so in a defamatory way.’ If there are people who are particularly associated with Glastonbury, the organisers, for example, if you were to just slightly disguise their names then you could be into that territory, but otherwise, taking sensible precautions you wouldn’t be.

Paul: There is a pragmatic side to all these questions of risk. You can apply the test: if I do what I’m going to do am I going to upset someone a lot? And, if I’m going to upset someone a lot who has access to funds and a lawyer, are they going to send you an aggressive letter? And, if the moment they send you an aggressive letter you’re going to back down straight away, and change your text, or pulp your book, or burn it on a bonfire, then you start wondering what was the point of doing it in the first place? Because you knew they were going to write you an aggressive letter afterwards, and you knew you weren’t going to fight against it, in which case it’s probably not worth the risk.

Keith: There are other practical steps that you can take to avoid a potential liability if you’re worried  that some of your characters might be identified as real people and you might be facing some libel action, and the most obvious way of protecting yourself is to take out some insurance.

You can just Google libel insurance and you’ll find somebody there who will probably be able to offer you a quote. If it’s a novel, you’re likely to get comparatively cheap insurance if it’s something that you want to protect yourself against the unlikely event of this happening. You may be covered by your publisher’s insurance, sometimes there are excesses or deductibles to pay, but most publishers would carry insurance which might in some cases cover the author. It doesn’t always. In fact, sometimes smaller publishers will insist on getting an indemnity from the author to cover them against any action against the publisher over defamatory content or other legal issues that might arise. There are ways, if you think that you might have strayed unintentionally into legal deep water, of protecting yourselves.

How do you know when you’ve crossed the line from satire and parody into potential defamation? For example, how can a parody like Bored Of The Rings exist?

Paul: There are at least three different rights or areas to be concerned about. One’s defamation, one is trademark infringement, and then there’s copyright. If you take a play and create a satirical version of it, then you’ve created an adaptation of that play, which is itself potentially a copyright infringement. Making a satire is one example of an adaptation, which is a type of copy, so making a translation, a satirised version, or a shortened version. These are all copies. You’ve got your three different areas there.

Trademarks: You know you see those children’s books like the Famous Five parodies? There is certainly going to be trademark, or goodwill, in the Famous Five and Enid Blyton’s works and so if you want to produce one of those I assume they have a licence to do it. You can have a satirical style of a book, which talks about children going off and having an away day, but if you want to use a famous brand in order to sell the book, and if you think about it the reason people will pick that off the shelf and buy it is because it evokes a memory of reading those books as a child, that’s the force that takes them to buy the book. That’s all protected by trademarks and passing off rights. If you did that without consent of the rights holder you would run into trouble, I think.

On the copyright side, the concept of being entitled to infringe a work by having a defence of parody or satire, that’s actually a new concept in English copyright law, which was only introduced within the last few years, picking up on a defence to infringement that was included at European level that hadn’t actually been introduced to our law. If you read the government consultations about it, it looks like one of the driving forces behind it was to allow the sort of satirical Youtube videos of songs that you find on Youtube. Even though it’s questionable that the kind of defence introduced actually helps in those situations. There’s been case law now at the European courts on what parody and caricature and pastiche is. There was actually a case that went to court where there was a Belgian comic — I think the second-most famous Belgian comic after Tintin — called Suske and Wiske and essentially someone who was promoting a far-right party in Belgium took the front cover of one of those comic books and did what they said was a satire about it, but they were making a political point that supported their party view, and the court of justice held that sort of satire did fall within the parody exception were it not for the fact that it essentially demeaned the author of the original. They introduced in the back door an extra element, which isn’t found in the legislation, which says yes you can do a satire, but the court is also allowed to think about what this does to the rights and reputation of the author of the original. Similarly now, in English law, if you were to produce a satire of someone’s work, you might be able to escape copyright infringement, but you might still run into trouble with things like defamation, potentially, or with the moral rights of an author, which are the rights not to have their work subject to derogatory treatment. If you produce a satire that the author of the original just hates, it’s hard to see how they wouldn’t argue that it’s derogatory of their work.

Shows like Saturday Night Live regularly mock public figures. How can you do that without getting sued?

Paul: The area you’re in there is making mocking comments about public figures, rather than taking a copyright work, a creative work, and changing it.

Keith: If you take a TV programme, for example W1A, the satire about the BBC, that’s a satire about the way an organisation works and it may well be reasonably understood to refer to certain identifiable individuals within the BBC. I don’t know about the way the BBC operates to know if that’s the case, but as long as your satire is reasonable, it’ll be fine. Obviously people will associate a satire of the BBC with the BBC. If it’s a satire of the UK Independence Party, for example, then it’s going to be obvious who you’re referring to. The reason you’re able to get away with it is because we have a defence to defamation known as honest opinion. It used to be called fair comment. And that entitles you to comment in an uncomplimentary way on the behaviour of other people and the characters of other people. The difficulty would arise where you go over the top. For example, I remember that Spitting Image used to depict John Major, the former Prime Minister, leading a very grey and dull life, eating peas. And he used to sit there with a big bowl of green peas in front of him, from which one inferred that he was a very dull and boring person. The reality of course is that John Major didn’t, one assumes, eat a big bowl of peas every night, so it wasn’t literally true. The message being conveyed, that he was being a very boring guy, who had a strange passion for green food, or whatever, is simply comment, it’s just opinion, it doesn’t really convey anything damaging about him and it’s well within the bounds of fair comment, or what would now be called honest opinion. If you were to show John Major, or somebody in UKIP, or somebody in the BBC, engaged in some actual act of fornication at work, for example, or doing something criminal, smoking drugs, then you would have stepped right out of the honest opinion protection. You would be making a serious charge, that somebody behaved in a disreputable way. And if you do that you’re going to have to defend it as true. It’s gone beyond the bounds of reasonable satire into something entirely different.

The onus would be on you, the writer, to prove that something like that actually happened?

Keith: Exactly, if you make a factual allegation about somebody, as opposed to just poke fun at them, satirise them, give people your opinion about what you think of them, then you’re going to have to show them it’s true.

Going back to Youtube parodies, we see these disclaimers on videos using copyrighted material: I do not own this material, or this is for educational purposes only. Are they valid?

Paul: No. The internet is a bit of a wild west, and the reality is a lot of publishers and rights holders will not go after everyone who does a satire, or a mocked-up version. It doesn’t really bother them. It shows that they’re producing a work that’s famous and is popular and it probably just lends weight to that. The moment someone does something that the publishers don’t like they will go after them. The comment I made about the parody exception not helping the Youtube videos the government said they were introducing it for; they were thinking of people taking lyrics and parody versions. But generally they’re set to the exact same musical score that accompanied the original work, and that’s actually a separate copyright work. You have the copyright on the musical score, the copyright on the lyrics. It’s not really clear to me that parody works across all those different levels of copyright.

Can we talk about titles? What’s to stop me calling my book The Lord Of The Rings?

Paul: It’s probably trademark rights to stop you doing that. Goodwill in the brand, rather than copyright. So probably not long enough in itself to be a copyright work, but certainly the reason you would be calling your book that is because you wanted people to draw that link with a famous brand so that you would sell more copies.

Are there any past cases that we should know of that might help us?

Keith: As far as defamation is concerned, the good news for people who are thinking of publishing books is that book publishing, generally, is at the lower end of the risk scale, just because of the way books are produced. There is less scope for libel because people have a bit more time to check things and take care that they’re publishing what they should be publishing. Books are quite carefully lawyered, not necessarily novels, because people don’t expect fiction to give rise to libel claims, but certainly non-fiction books of certain kinds would be looked over by a lawyer before publication. A lot of steps are taken to reduce the risk of a claim of libel arising in respect of a book. I can’t actually think of any libel cases involving a work of fiction that really did any greater harm than cause a bit of inconvenience and cost a little bit of money to the publishers concerned. It’s quite unusual for that to arise. With non-fiction there certainly have been quite a lot of cases against book publishers, nothing like as many as there have been against newspaper publishers and broadcasters, but there have been some. The publishers’ record of cases going to trial is pretty good. One famous case, there’s a film out at the moment, Denial, was over the attempt by David Irving to sue Penguin books and Deborah Lipstadt for libel for calling him a holocaust denier in a serious academic work, which went to trial in London and Irving famously lost. There was another case against Orion a number of years ago which concerned a book called Bent Coppers, which named a number of bent coppers, one of them sued for libel, it went to trial. The claimant copper won that in the High Court, but it was later overturned on appeal. Ultimately, the publisher won that case.

Mr. Stay: I was working at Orion at the time. I remember having to get all the copies back from stores.

I think one reason book publishers take a lot of extra care to make sure that they get it right is that the consequences of getting it wrong can be pretty catastrophic. It’s very difficult to withdraw copies in that way. If you publishing something defamatory in the Mail or the Sun or a weekly magazine, well it’s kind of come and gone. Nowadays it will usually be online as well, but it’s very quick to take stuff offline. The remedy is much easier in the case of those publications than it is with a book.

Bestselling authors often find themselves sued for ‘stealing ideas’, but these are rarely successful. When might someone have a case for plagiarism?

Paul: In the UK courts the most famous case like that where someone sued because they claimed their idea or plot was taken was in The Da Vinci Code case where the authors of The Holy Blood And The Holy Grail said that their themes had been copied into The Da Vinci Code. Normally, copyright is literal copying: you have text, and someone copies that text entirely or substantially, but in this case that hadn’t happened, so what they had to say was their central themes of that book were all copied, which taken as a whole should be enough to satisfy the legal test. Because they had to reverse-engineer the evidence to make their case as strong as they could they came up with fifteen or so central themes of their book, which they said were copied across. Ultimately they failed and the court said this idea of thematic copying was not really what copyright’s about.

Copyright is about protecting the expression of ideas. They way they’re expressed in a literary work. Not the ideas themselves.

The sorts of IP (Intellectual Property) rights that are engaged to protect ideas are patents, which are there to protect inventions; inventive things that lend a technical development to the market. There’s no IP rights in ideas as such.

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