The ease and informality of digital publishing have led to an increase in complaints about false attribution: that is, representations that a person is the author of a work – such as a blog post, photo or graphic – when he or she is not. There are several common scenarios:
- using the name of a well-known author to add credibility to a work;
- publishing low-quality or inappropraite material to damage a person’s credibility;
- copying someone’s content, adapting it (e.g. for nefarious SEO purposes), and maintaining that the original author is the author of the adapted work.
Such actions may give rise to rights under the law of copyright, defamation or malicious falsehood. However, there is also a little-known moral right against false attribution. This is set out in section 84 of the Copyright, Designs and Patents Act 1988.
Under that Section, a person has a right not to have a literary, dramatic, musical or artistic work falsely attributed to him or her as author. The right is infringed by anyone who issues copies of a work containing a false attribution to the public, or performs such a work in public or communicates such a work to the public. Dealing with copies of such a work may also constitute an infringement. The right continues for life and for a period of 20 years following death.
In principle, an action for breach of this right may lead to damages and/or an injunction restraining the defendant from continuing or repeating the publication. In practice, most internet-related cases of false attribution are irritating rather than damaging, and full-blown legal action may be disproportionate. That said, many cases can be solved with a solicitor’s letter: the benefits of continuing to publish a false attribution will rarely outweigh the risks of High Court litigation.
What about using a photograph of a dog (with permission) but failing to credit the owners in a book, when all other photos in the same publication have the appropriate credits?
When you say “owners”, do you mean owners of the copyright in the photograph, the person(s?) who took the photograph, the owners of the dog, or some combination of these things?
Also, under what circumstances was the photograph taken?
The owners of the dog. We were approached to have photos taken of our dogs for a new book. The dogs were duly photographed and we signed the release form allowing for any of the photographs to be used in the book, purchased the book when it was released and saw that a photograph of one of our dogs had been used but there was no credit (dog’s name, owners etc) listed. All of the other dog photographs used in the book have the appropriate credits listed, except ours.
Alison – Assuming there are no other salient facts, I don’t think you have any rights against the photographer or publisher – other than the right to be annoyed. Moral rights are concerned with authorship and the creative process, not the ownership of the thing (or creature) represented by the author or artist.
ps If the release form had included a right to a credit, or if you had stipulated a credit as a condition of the use of the photograph, then that right may have been enforceable as a contractual right.
Yes: as in all passing off claims, the claimant would need to demonstrate misrepresentation and damage, as well as the existence of goodwill.
I am not famous but established photo reporter, sorry no dogs, reportage from Syria. My photo even had “Gettyimages” after the misappropriation. I was refused a letter for a post licence, actually a fee, from a law firm, because the poster took it down after my complaint. Of course they took it down! As SEQ LEGAL quite pertinently remarks, it’s more the irritation than the damage, so no damage noo fees? I saved in web archives and it was on for 2 years.
… passing off will only apply where the person involved – the person asserting the right against false attribution – is using there name in the course of a trade, profession or business. E.g. an established author might have a right in passing off against the false attributor.
NB in some cases of false attribution there will also be a right to bring proceedings for passing off.
The best-known case of recent years (well, the last 15 years) involved Alan Clark. The case involved parodies of Clark’s diaries published in the Evening Standard.
I’d be interested to know if anyone is aware of any recent UK case law on the subject of false attribution.