COULD DALLAGLIO SUE FOR BREACH OF COPYRIGHT?

The Player's Words May Be Protected, Says Adrian Heath-Saunders

Terms such as "entrapment", "incitement" and "agents provocateurs" were used
last week to describe the activities surrounding the News of the World
reporters who, posing as representatives of Gillette, extracted from
Lawrence Dallaglio "confessions" of drug-taking, dealing and an active
interest in prostitution.

The debate over the legality of the News of the World's actions has focused
on the criminal law. But what of civil remedies of copyright and trademark
infringement and passing off? Do Dallaglio or Gillette have any claims
against the newspaper?

His words may be protected by copyright. Had Dallaglio written those words
as part of an autobiography, were spoken and recorded by the News of the
World makes no difference to ownership of the copyright. When his words are
recorded, for example on tape, copyright protection arises, provided that
they are not one-word answers or short sentences. As the author, Dallaglio
would be the owner of copyright, notwithstanding that the recording was made
by the paper.

The former England rugby captain says he was "playing along" with people
whom he understood to be representatives of Gillette. So, unlike the
situation in which an interview is given freely, the News of the World
cannot argue that Dallaglio had given it permission to print his words. On
the assumption that there has been a substantial reproduction of what
Dallaglio said, the newspaper has infringed Dallaglio's copyright. Although
it is too late for Dallaglio to prevent publication, he may seek damages or
alternatively an account
of the profits made by the News of the World.

Dallaglio may also argue that the information given to the reporters, posing
as representatives of a potential sponsor, was disclosed in circumstances
where they ought to have realised that they should keep the information
given as confidential. This could impose upon the reporters a duty of
confidence, the breach of which would again entitle Dallaglio to damages.

But what defence does the newspaper have? One option in a copyright claim is
the defence of fair dealing for the purposes of reporting current events.
This defence could see the News of the World successfully defend any
lawsuits. Also, the newspaper might argue a public interest defence, which
would apply both in respect of
copyright infringement and a claim for breach of confidence. What rights
does Gillette have in all this? It has consulted its lawyers and issued a
statement denying any involvement. So what are its options?

It would appear that the News of the World reporters did not copy the
Gillette letterhead as part of their deception. Rather, they operated under
the name of a false public relations company. Had the News of the World
reproduced Gillette's letterhead, a claim for copyright infringement might
have arisen. Gillette's lawyers may be considering claims for trademark
infringement and passing off. The News of the World reporters have passed
themselves off as representatives of Gillette. At first sight passing off
would appear to be the most appropriate claim. However, for such a claim to
succeed, there must have been damage. Gillette may find it
difficult to show such damage arising from the News of the World deception.
The pitfalls for the journalist engaged in "sting" operations such as
resulted in the Dallaglio story are numerous and reliance may need to be
placed on nebulous defences such as the public interest. As some journalists
increasingly engage in investigative conduct of a dubious nature, the
public interest defence is likely to hit the legal headlines with more
regularity. The courts may need to consider whether the public interest is
better served by delivering
evidence in confidence to the police, rather than using it for an exclusive.

The Sophie Rhys-Jones incident raises raises the same sorts of issues. The
circumstances in which the picture was taken are unlikely to have imposed
any confidentiality obligation on those present. Even if they had, any
confidence was breached some time ago, not least because the photograph was
stuck on Kara Noble's noticeboard. As regards copyright, under the law
applying when the photograph was taken, copyright belongs to the owner of
the film at the time the photograph was taken. Under the current law,
copyright belongs to the person taking the photograph.

Unless Sophie Rhys-Jones owned the film used by Noble, she would have no
claim for copyright infringement. If Ms Rhys-Jones did own the copyright,
The Sun could not rely on the fair dealing defence, since that defence
excludes photographs. Any public interest defence would fail.

The author specialises in media and intellectual property law with Wedlake Bell