HER ROYAL HIGHNESS MEGHAN MARKLE AND COPYRIGHT LAW

The British tabloid, Mail on Sunday, along with its own commentary, published extracts of a five-page handwritten letter that Meghan Markle, the Duchess of Sussex, had sent in August 2018 to her father, Thomas Markle. Upset that this private and personal letter was made public, Meghan has sued Mail on Sunday and its proprietors.

While the media in reporting this lawsuit have most commonly referred to breach of privacy and defamation, one claim, and possibly the strongest claim, that has been made is breach of copyright.

While it may be well known that copyright subsists in books and articles, it also subsists in personal letters. They all constitute ‘literary works’ under the copyright laws of most countries, including the UK and New Zealand. The copyright in these works is owned by the respective author unless it has been assigned to another entity—something that does not happen with personal letters.

Unless the author gives permission (a licence), the publication of such letters will constitute an infringement of copyright. Two significant rights given to owners of copyright in literary works are the exclusive right to reproduce (make copies of) the work and the exclusive right to issue copies of their work to the public—that is, publish their work.

If a court at trial decides there has been an infringement of an author’s copyright, then the remedies it will give to the author include an injunction preventing further publication and an order for the publisher to pay a sum of damages. If the infringement is considered ‘flagrant’, the court will considerably escalate the amount of damages to be paid.

Some types of copyright infringement also constitute criminal offences, and where that is the case, the infringer may be fined or sent to prison. However, infringement by unauthorised publishing of another person’s written work has not been made a criminal offence under the copyright laws of the UK or New Zealand.

Before a case gets to trial, the author may obtain an interlocutory injunction requiring the unauthorised publisher to cease displaying the letter on their website until judgment is given at trial.

There are defences available to news media for what might otherwise be considered copyright infringement. The relevant one in Meghan Markle’s case is contained in the group of ‘fair dealing’ defences prescribed in the copyright legislation of both the UK and New Zealand. This is that ‘fair dealing with a work … for the purposes of reporting current events does not infringe any copyright in the work’. This will, no doubt, be the copyright defence which the Mail on Sunday will rely on in Meghan’s case against them.

The major issue here will be whether the publication of the letter extracts was ‘fair’. In considering ‘fairness’, courts take into account issues such as whether what has been written has already been published elsewhere and/or whether it is private and confidential. Also, whether the extracts are substantial or only trivial snippets will be taken into account.

Unfortunately for the Mail on Sunday, they seem not to have learnt from or remembered the case taken against them in 2006 by the Prince of Wales after they had published extracts from the diaries he kept of overseas visits made in his capacity as the Queen’s representative. Among other things, their copyright defence of ‘fair dealing’ was completely rejected.

Meghan’s copyright case is perhaps even less defendable because her letter was private and personal and totally unconnected with any official governmental duties.

In New Zealand, the cases where this fair dealing defence has been raised have been confined to companies who have re-shown excerpts of radio or television current affairs or sports programmes. Either we have no media scandal rags or we do not have celebrities whose writings are sufficiently juicy for gossip-lovers.