Dear Chaim and colleagues;
This episode has of course been widely reported in the press here. Some of you even outside Australia may have heard of the "The Chaser", whose usually over-the-top satire has included things such as staging a fake visit to the Sydney APEC forum by someone dressed as Osama. There was quite an amount of public outrage that their intended satirical commentary on the coverage had to be cancelled a few days before the event after being widely publicised. There are some semi-official comments from the ABC at
http://blogs.abc.net.au/nsw/2011/04/who-killed-the-chasers-wedding-coverage.html.
With my Intellectual Property hat on my take on the issues is this:
(1) It was not expressed as a ban on all satirical coverage of the event (as much as the Palace may have wanted this, they have no legal power to enforce such a thing.) We have a long-standing case in Australia, Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 which holds that there is no "property in a spectacle", and that if one can see a public event, one can film it and transmit it. So there would have been no ban on The Chaser sending their own camera team to film events and offer commentary (though of course they would have been unlikely to have received an invitation to be present in the Abbey!) Still, the late ban (and I venture to suggest what it would have cost to send the Chaser crew for a semi-decent coverage to London!) meant that they really had no other options other than to cancel.
(2) The issue was in the use of the "live feed" provided by the BBC. Since they had effectively a de facto monopoly on the coverage, at least as far as I am aware, then they were entitled to put conditions on the use of the material by those to whom they provided it. Under the Copyright Act 1968 in Australia s 87 provides copyright protection in a "television broadcast" separate to any other copyrights. I think the Palace had given permission for the BBC to be in the Abbey on condition that they provide the feed free of charge to other international broadcasters, but also imposed the conditions about no satirical use. A number of Australian commentators noted, however, that some of the commercial networks in Australia (The Chaser is provided by the national public network, the ABC), while purporting to have a "straight news" coverage, had their fair share of tongue-in-cheek commentary (including an appearance by Dame Edna Everage, whom some of you may know.) I guess some satire is more equal than some other!
Regards
Neil
On 06/05/2011, at 2:14 AM, Chaim Saiman wrote:
Dear OBGers
I am not sure whether this is technically an “obligations” question or more of a property/rights of publicity question, but. . .
I understand that if the BBC/AP videoed the wedding, they would own the copyright in their recording¸ and could contractually restrict downstream usages of the footage. But at least as its being reported, this is not what happened, rather the Palace, placed restrictions on how footage of the event could be used by anyone, and presumably would prohibit The Chaser or The Daily Show from sending its own crews to London to film the events.
So my basic question is, (i) under English can someone (even if she is the Queen) own an event conducted in public, widely publicized, (not to mention more or less funded by the public)? (ii) Assuming the answer is yes, would such a determination be binding as a matter of Australian law?
FWIW, I talked to an IP colleague in the hall and he was pretty confident that under US law (through some combination of the First Amendment, state privacy/right to personality law and federal IP law, no-one could lay claim to “owning” the royal wedding conducted a widely publicized event in public (contra the weddings of Chelsea Clinton and Jenna Bush) and certainly not a “public official.”
Perhaps the answers to these questions are well known in the Commonwealth, but I have not seen much about it in the US lawgosphere. (we are talking about Osama here)
Thanks
Chaim
Chaim Saiman
Associate Professor
Villanova Law School
610.519.3296
Neil Foster,
Senior Lecturer,
Deputy Head of School & LLB Program Convenor,
Newcastle Law School,
Faculty of Business & Law.
MC158, McMullin Building,
University of Newcastle, Callaghan NSW 2308 AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931