Ross-Brand Controversy: Silverman Sherliker advise on copyright clash

The row over Jonathan Ross and Russell Brand’s phone calls to veteran actor Andrew Sachs also triggered an intellectual property dispute over a photograph of one of the key players. As the telephone call story broke, The Daily Mail and London’s Evening Standard newspapers, both part of the Associated Newspapers Group, illustrated articles about the row with a photograph of the central figure in the row, Georgina Baillie, which had been downloaded directly from the Internet without the copyright owner’s consent.

The photograph had been taken by an employee of our clients, a leading clothing company, for promotional purposes. As the photograph was taken by an employee, the company owned the copyright by virtue of Section 11(2) of the Copyright, Designs and Patents Act 1988.

The newspapers failed either to seek the consent of the company, which would have allowed them to use the photograph, or to obtain a licence from the company for use of the photograph.

Chris Sherliker and Dennis Lee acted for the copyright owner and negotiated an out of court settlement with Associated Newspapers.

Chris Sherliker says: “The case illustrates some important issues around copyright, including the wild fluctuations in value of an artistic work depending on the market at the time. The value of this photograph on the day after the main story of the ‘telephone incident’ broke was obviously very much greater than it would have been under normal circumstances and obviously gave the Daily Mail and London Evening Standard an edge over their rivals and helped to sell additional papers. We made sure that this factor was reflected in the settlement amount”

“Such infringements have been made much easier by the internet. Many of us may download photographs from websites at home without any consent or licence. Under the law that would be a straightforward copyright breach but because in most cases we are not doing this for commercial purposes, we are unlikely to be approached by the copyright owner.

“In this case, the breach was so clear-cut that our client could not just sit back and do nothing. The newspapers may have thought the copyright owner was not a large organisation, and would therefore not want the expense of legal action. We were, however, able to achieve a highly satisfactory result for our client through the less costly route of negotiation.

“The newspapers were initially resistant to resolving the issue, and we had to threaten legal proceedings. We succeeded, however, in agreeing a substantial retrospective licence fee for our client.”