As has been widely reported in the press, HRH The Duchess of Sussex Meghan Markle has issued Court proceedings against the Mail on Sunday for publishing extracts of a lengthy letter she sent to her father Thomas Markle in August 2018. 

Whilst the media coverage has concentrated on Meghan’s breach of privacy and defamation claims, one of the claims she has made against the Mail on Sunday, and perhaps the strongest, is a breach of copyright claim. 

Whilst it is well known to many people that copyright subsists in books and articles, the same is true for personal letters written by individuals.  This is because private letters come under the definition of “literary works”.  Copyright automatically arises on the creation of the work, in this case the letter, and lasts 70 years after the death of the author.  The creator of the work is usually the first owner of the copyright in it.  Sometimes copyright can be assigned to another person or company but this does not apply in the context of personal letters. 

Copyright infringement occurs when someone carries out certain acts regarding the work without the permission of the author. These acts include:

  • Copying the work;
  • Issuing copies to the public;
  • Renting or lending the work to the public;
  • Performing, showing or playing the work in public;
  • Communicating the work to the public;
  • Making an adaptation of the work; and
  • Importing infringing copies.

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In the example of Meghan’s copyright claim against the Mail on Sunday, the relevant copyright infringement acts appear to be that the newspaper has copied the work, issued copies to the public, showed the work in public, communicated the work to the public and made adaptations of the work. 

If this case goes to trial, the Court will have to decide if there has been an infringement of copyright.  If HRH is successful in establishing copyright infringement, the remedies available to her as copyright holder include:

  • Damages for loss she has suffered;
  • An injunction to prevent further infringements i.e. further publication of her letter;
  • Delivery up, destruction and/or seizing of the infringing articles; and
  • Payment of costs.

There are certain circumstances in which third parties can make use of another person’s copyright works and these are set out in the Copyright, Designs and Patents Act 1988.  The defence the Mail on Sunday are likely to argue is the one of “fair dealing” with a work for the purpose of reporting current events.  The major issue that the Court will look at is whether the newspaper’s publication of extracts of Meghan’s letter to her father was “fair”.  In considering fairness, the court will take into account issues such as whether the letter or extracts of it had already been published elsewhere, whether the letter is private and confidential and whether the extracts published were substantial or mere snippets of the letter as a whole.

Unfortunately the Mail on Sunday seems not to have learnt lessons from the case the Prince of Wales issued against them in 2006 where the newspaper published extracts from diaries he had kept of overseas visits he made on behalf of Her Majesty the Queen.  In this case, the Mail on Sunday’s defence of “fair dealing” was completely rejected by the Court.  There is also a clear distinction between the Prince of Wales’ case and the Duchess of Sussex’s case which seems to suggest Meghan’s copyright claim is much stronger because her letter to her father was personal and private and totally unconnected with her official duties on behalf of the Government or the Queen. 

It will be very interesting to see how this case develops over the coming months and whether Meghan, and potentially other members of the Royal Family, will have to give evidence in court. 

Our specialist intellectual property disputes team routinely advises on a broad range of disputes relating to copyright along with other intellectual property disputes relating to trademarks, patents, confidential information and data protection.  The team is also highly skilled at advising on design rights and reputation management issues and are regularly instructed by clients from the arts, media, textile and clothing sectors in the UK and internationally.  If you need advice on copyright or other intellectual property infringements, please do not hesitate to contact a member of the team today.