Sep 03 2010

Beyond parody: Miss World and South Lanarkshire

I’ve said before that Mr Justice Albie Sachs of the South African Constitutional Court is one of the great judges of our time. One of his great writings is his concurring opinion in the case of Laugh It Off Promotions CC v South African Breweries International (Finance) BV, [2005] ZACC 7, in which he posed the question “Does the law have a sense of humour?”. This was an action by a beer distributor in which, to use his words,

a graduate of a course in journalism decided to do battle with a number of corporate giants, calling his enterprise Laugh it Off and arming himself with T-shirts bearing parodied images and words brazenly pilfered from his opponents. One of his victims, South African Breweries [SAB], saw one of its well-known trademarks reproduced on T-shirts for public sale. The words ‘Black Label’ and ‘Carling Beer’, which accompanied the logo were transformed into ‘Black Labour’ and ‘White Guilt’. In smaller lettering the slogans, ‘America’s Lusty Lively Beer’ and ‘Brewed in South Africa’ were converted into ‘Africa’s Lusty Lively Exploitation Since 1652, No Regard Given Worldwide’. SAB did not laugh. Instead it went to the Cape High Court and sought, and obtained, an interdict restraining distribution of the T-shirts.

The appeal succeeded1. The Constitutional Court held that this supposed abuse of the Carling trade mark, which was claimed to be an unfair infringement of its intellectual property rights, was protected by the South African constitutional right of freedom of expression, which is in effectively identical language to Article 10 of the European Convention on Human Rights in this country. The Court went further:

The Constitution cannot oblige the dour to laugh. It can, however, prevent the cheerless from snuffing out the laughter of the blithe spirits among us. Indeed, if our society became completely solemn because of the exercise of state power at the behest of the worthy, not only would all irrelevant laughter be suppressed, but temperance considerations could end up placing beer-drinking itself in jeopardy. And I can see no reason in principle why a joke against the government can be tolerated, but one at the expense of what used to be called Big Business, cannot.

A few years ago Miss World, the company not the individual, ran a similar argument to Carling’s in the English High Court, Miss World Ltd. v Channel Four Television Corporation [2007] EWHC 982, when it heard that Channel 4 was proposing to screen a programme following the fortunes of an English competitor in a beauty pageant for transvestites and transsexuals in Thailand under the title “Mr Miss World”. The late and much-lamented Mr Justice Pumfrey granted an interim injunction (equivalent to interdict) with considerable hesitation, holding that Channel 4 was taking unfair advantage of Miss World’s commercial goodwill.

Now back to South Lanarkshire. The Council, it seems, sees itself as Miss World, not as a beer company. It now complains that its copyright in its logo, which bears the words “South Lanarkshire Council” is infringed by the publication of a parodic logo with the words “South Lanarkshire Coalcil”, satirising the Council’s supposedly over-close friendship with Scottish Coal. In its own words,

I have insisted upon an immediate public retraction of the statements made within the article. In addition, the use of the Council logo by Coal Action Scotland at the head of this article without permission is improper use of copyright material owned by the Council. The use of the logo is strictly prohibited without prior authorisation and, therefore, this is a breach of copyright regulations… The article, as well as being inaccurate, also endorses the Coal Action Scotland call for people to post the controversial article and logo on their websites and blogs and I believe that this is both encouraging an act which is potentially actionable by South Lanarkshire Council and also encourages a breach of copyright regulations… both should be removed immediately.

So, to be clear, there is to be no humour in South Lanarkshire. That is strictly prohibited. Instead, there is to be the use of the Court for censorship of dissent. Neither Coal Action Scotland nor Indymedia are in fact using the Council’s logo; they are using a parody or satire. As an analogy, Private Eye has for many years carried a parody of the Daily Express’s logo on its masthead. I doubt whether the Express was ever so foolish as to complain; it would recognise this for what it was. The Express is not beyond parody. But it seems that South Lanarkshire Council is.

I have no idea whether Coal Action Scotland’s substantive criticisms of the Council are accurate or not. That is not my concern; my concern as a litigator is with the abuse of legal threats in an attempt to stifle criticism and satire. It is hard to think of a clearer example of fair use than the offending logo, or a clearer example of the use of threats of legal action as intimidation than South Lanarkshire’s letter.

  1. See for further comment this article in SCRIPTed by Matthew Rimmer. [back]

4 comments published

4 comments published to “Beyond parody: Miss World and South Lanarkshire”

  1. Laurence KennedyNo Gravataron 04 Sep 2010 at 12:07 am

    The complaint about use of logo is almost identical to that in SUN v Mack – (also in SCLR). Copying may be for parody, but it is copying nonetheless if the new is derived from the old. Wonder if there is freedom of expression issue now though, if the use is intended to express a political view?

  2. JMNo Gravataron 06 Sep 2010 at 12:19 pm

    I think you’re right in saying that the use of the original SLC is as much a ‘copying’ in terms of section 16 of the Copyright Designs and Patents Act as was the use of the logo in SUN v Mack. The question is then as to the interrelationship between copyright on the one hand and criticism, parody, and satire on the other. The use could be seen as an act of criticism, protected by section 30 of the Act: but it might be questioned whether there was a ‘sufficient acknowledgment’ of SLC’s copyright. The more profound question is the effect of section 171 of the Act, which makes clear that section 16 does not affect “any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise”, and this must be read together with Article 10 and indeed also section 12 of the Human Rights Act.

    Miss World deals with this rather slightly, as the right there was trademark rather than copyright (and the court notes the different consequences); but see also Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142. This makes clear that in principle the Convention right of freedom of expression trumps copyright. For myself, I would have thought that the present case is an excellent example of it doing so; it is in the nature of parody and satire that they use the original; if the South Lanarkshire Council logo had not been parodied as it was, the slogan ‘South Lanarkshire Coalcil’ would have lost its bite.

    There seems to be a striking lack of authority in Scotland and England on the interaction between freedom of expression, satire, and copyright; there are a fair few US authorities (see Rimmer, linked to above). I surmise that this is because the average victim is thicker-skinned than South Lanarkshire claims to be, and would never seriously consider litigation. Ultimately, though, the South African analysis of the interaction in Black Label above seems to me to be persuasive for our law; the question is ‘is this an exercise of the right of freedom of expression’, not ‘is this in breach of copyright’.

  3. […] 1.  Jonathan Mitchell QC: Unfortunately Jonathan has yet to post in 2011. However, as this is the Time Travel Edition I can take you to his second last post from 3 September 2010: Beyond parody: Miss World and South Lanarkshire. […]

  4. Steve DaviesNo Gravataron 21 Nov 2012 at 12:44 pm

    I agree with you that these are an exercise in the freedom of speech and not a breach of copyright. Having harked from South Africa my self a long time ago i found my self chuckling at the slogans . There must be a way that this kind of abuse using legal threats can be stopped , it is really ridiculous