In 2019, the Mail on Sunday and MailOnline published extracts of a handwritten letter from the Duchess of Sussex, Meghan Markle to her father, Thomas Markle. The Duchess claimed that such publication was a misuse of her private information, an infringement of copyright and a breach of data protection rights. She applied for summary judgment on the privacy and copyright claims and on 11 February 2021, Mr Justice Warby handed down his highly anticipated decision with consequential matters determined in a later decision on 5 March 2021.
A judge can award summary judgment against a defendant if the defendant has no real prospect of a successful defence and there is no other compelling reason why the case should be disposed of at a trial. In these proceedings, the judge awarded summary judgment in the privacy claim and on the subsistence and infringement of copyright. However, Warby J considered that there should be a trial limited as to whether there was a co-author of the letter and to what extent the Kensington Palace Communication team was involved in the letter’s wording. In the consequential judgment, he held that the remaining copyright issues should be tried in October 2021, following a directions hearing in April or May, and that the Duchess should get a declaration of the outcome of the summary judgment hearing and the newspapers should publish a notice about the result online and in the Mail on Sunday. At the time of writing, the newspapers have not published such notice and it is unclear whether this is indicative of an appeal or a settlement.
In this post we will take a deeper look at this decision, focussing on the copyright aspects.
In relation to privacy, the judge held that the news articles interfered with the Duchess’ reasonable expectation that the letter’s contents would remain private, as the letter was communication between family, with a single addressee and was “in short, a personal and private letter”. Moreover, the publication of the letter to correct a misleading account of the father-daughter relationship by US’ People magazine was deemed to be disproportionate.
The Duchess claimed that Associated Newspapers’ publication infringed copyright in an electronic draft of the letter developed over time on her phone, as this was an original literary work in which copyright subsisted and she was the author. The defendant argued defences of fair dealing for the purposes of reporting current events under the Copyright, Designs and Patents Act 1988 (CDPA), public interest and freedom of expression under Article 10 of the European Convention on Human Rights. It also argued that the Duchess was not the sole author of the letter.
Warby J awarded summary judgment on the subsistence and infringement of copyright. It would inevitably be held that the Duchess owned copyright in the original literary form of the electronic draft and such copyright had been infringed, while the defendant’s defences were bound to fail. There was no reason for those issues to go to trial.
Was there a co-author?
However, while the judge held that the Duchess was bound to prove that she was a copyright owner, the question to be determined at trial is whether she is the only author. Literary works can either have (i) a sole author; (ii) joint authors; or (iii) several authors who each have separate copyright. Where such work is made by an officer of the Crown in the course of their duties, Her Majesty has Crown Copyright. In this instance, the defendants argued that the Kensington Palace Communications Team were involved in writing the letter, particularly Jason Knauf (who subsequently resigned and has been reported to have alleged that the Duchess was bullying junior staff).
The main elements of joint authorship under section 10 of the CDPA are: (i) collaboration; (ii) authorship; (iii) contribution; and (iv) non-distinctness of the contribution. The Court of Appeal provided clarification on joint authorship in the 2019 case of Kogan v Martin, which indicated that contributions to a work do not need to be equal and that the focus should be on the skill and effort involved in the creation rather than who pushed the pen.
On the subject, Warby J opined that it was difficult to envisage a court determining that Kensington Palace’s contribution was “more than modest” and the suggestion of the contribution generating a separate copyright, as opposed to joint, was “at the very outer margins of what is realistic”. However, the defendant’s claim could not be described as fanciful and consequently, summary judgment was not awarded on this point.
Determination of this issue will have an impact on the extent of infringement and remedies available to the Duchess of Sussex.
Warby J opined that it was difficult to envisage a court determining that Kensington Palace’s contribution was “more than modest” and the suggestion of the contribution generating a separate copyright, as opposed to joint, was “at the very outer margins of what is realistic”.