Weekend read: The (many) copyright questions in Kate Middleton’s Mother’s Day manipulated image

Over the past week, there has only been one deserving topic of discussion: the picture that was published from the official social media accounts of The Prince and Princess of Wales to mark Mother’s Day (which in the UK was celebrated on 10 March last) and depicting Kate Middleton together with her three children:

The photograph was much anticipated as it would have been the first official image of Kate Middleton to be released since she underwent abdominal surgery last January.

When published, attribution of the photograph (marked by the use of the  emoji) was to “The Prince of Wales, 2024”.

What happened next is well known: the major news and photo organizations issued a ‘kill notice’ regarding the photograph (see here) because the image appeared to have been manipulated.

All this resulted in yet another official communication from Kensington Palace, in which Kate admitted the photograph’s manipulation by stating: “Like many amateur photographers, I do occasionally experiment with editing. I wanted to express my apologies for any confusion the family photograph we shared yesterday caused.”

While the conspiracy theories regarding Kate’s real condition and reasons for 'radio silence' abound – ranging from rumours of an extramarital affair of Prince William to Kate undergoing plastic surgery – it has emerged that the editing done on the photograph might be overall very extensive and such as to make the image more correctly characterizable as a work of digital art or even a collage rather than a photograph.

Among other things, it has been suggested that Kate’s face would have been actually lifted from the 2016 Vogue UK cover realized by Josh Olins:

All that said and pending further, unavoidable developments in this royal saga, the Mother’s Day royal photograph would make an excellent problem question for any IP professor and lecturer looking for ideas for a copyright examination paper. So here are some copyright angles to think further about.

Who’s the author of the image(s)?

The first question is prompted by Kensington Palace’s (clumsy) moves themselves: is Prince William (as initially declared) the author of the image or is it rather Kate Middleton (as subsequently admitted with regard to the editing activity)?

Here two follow-up questions may be raised.

First, if the author is not Prince William, could the initial statement by Kensington Palace trigger the application of section 84 CDPA and the moral right protecting against false attribution of a work? That appears tricky since the right is enforceable against someone who inter alia “issues to the public copies of a work of any of those descriptions in or on which there is a false attribution”. If it is true that the social media accounts of the Prince and Princess of Wales are officially their own, then Prince William could have a claim against Kate but obviously not against himself.

Secondly, accepting that William did indeed author the initial image, can then Kate be regarded as the author of the subsequent edited image, with the result that the latter would qualify as a ‘derivative work’?

That would be certainly a possibility as not only the Berne Convention (Article 2(3)) mandates the protection of inter alia “other alterations of … artistic work”, but derivative works have been also held protectable under UK law (think of the famous Hyperion Records v Sawkins [IPKat here] as an example). This, of course, would be the case provided that that the alteration in question satisfies the requirements for protection. Hence:

Are the images protectable?

It should be stated at the outset that, when the UK transposed the Term Directive, it decided not to take advantage of the possibility under Article 6 therein to protect photographs not only under copyright (and thus subject to a requirement of originality intended as “author’s own intellectual creation”) but also by means of what in continental Europe would be known as neighbouring and related rights (which are not known as such under UK copyright).

Under UK law, the only possibility for photographs is thus to receive protection upon fulfilling the originality requirement.

As readers know, under UK law and because of the effects of EU membership, originality has gone from being akin to “sufficient skill, labour or effort” to being intended in accordance with the case law of the Court of Justice of the European Union (CJEU), that is as “author’s own intellectual creation”, the result of “free and creative choices” so that the work carries the “personal touch” of the author.

Most recently, and despite Brexit, it was reiterated that:

What is required is that the author was able to express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their personal touch […] This criterion is not satisfied where the content of the work is dictated by technical considerations, rules or other constraints which leave no room for creative freedom […]

So, assuming that we have two images here (Prince William’s photograph and Kate’s edited version), we could have two copyrights:

• The first would be the copyright in Prince William’s initial photograph. To this end, it would have been necessary for him to have made “free and creative choices” at different stages of the photograph’s creation, in accordance with the guidance provided by the CJEU in Painer;
• The second would be the copyright in Kate’s edited version (which, at this point, could be a digital artwork or a collage). In this sense, the more “creative” (and extensive) her edits, the better under copyright. Incidentally, the CJEU has been asked to indicate how to assess originality in derivative works in the pending referral in Institutul G. Călinescu [IPKat here].

Who owns the copyright(s) to the image(s)?

Another intriguing question is whether this would be a situation in which Crown copyright applies.

Under section 163 CDPA, “Where a work is made by [His] Majesty or by an officer or servant of the Crown in the course of his duties— (a)the work qualifies for copyright protection notwithstanding section 153(1) (ordinary requirement as to qualification for copyright protection), and (b)[His] Majesty is the first owner of any copyright in the work.”

IPKat-approved Mother's Day image

There is little doubt that the Prince and Princess of Wales are Senior Royals and may be regarded as “officers or servants of the Crown”, but the question here is whether the realization and publication of the images (whether it’s the original photograph or the edited version) could be regarded as something that pertains to their “duties” in such a capacity.

Is the realization and publication of social media content something that qualifies as the Royals’ own (professional) duties? A royal watcher (or employment lawyer) could perhaps tell …

And what about the alleged reproduction of Josh Olins’ photograph?

And, last but not least (at least for this weekend), another juicy issue: the alleged lifting of the Vogue UK cover. If that was true, could such a reproduction be regarded as prima facie infringing and, if so, could it qualify for the application of any defence under copyright law?

Starting with prima facie infringement, there seems to be little doubt that the reproduction of the entire face of a person portrayed in a portrait photograph (the photo is mostly … them!) would be relevant under copyright law. To establish prima facie infringement under UK law:

• A claimant needs to demonstrate – in accordance with section 16 CDPA – that the defendant has done any of the restricted acts in relation to the work as a whole or any substantial part of it. The notion of ‘substantial taking’ should not be intended in a quantitative sense (see as early as Designers Guild).
• In light of the CJEU decision in Infopaq (which, before being a case about originality, is a case about infringement and remains good law even in post-Brexit UK) it is apparent that there is “substantial taking” of a work when what is being reproduced is sufficiently original in the sense of being its author’s own intellectual creation.

Could a defence apply?

Parody under section 30A CDPA would be excluded at the outset given that the image is not an expression of humour or mockery (as instead required under Deckmyn [IPKat here]).

The same would go for quotation under section 30(1ZA) CDPA given that, if anything, no acknowledgment of the original source has been provided. Recently, in Pasternark, the quotation defence was held inapplicable exactly because of the lack of acknowledgment of the source.

At this point, the seeming jolly of copyright law comes to mind: pastiche. While the CJEU will need to clarify the meaning thereof in the upcoming Pelham II judgment, the Intellectual Property Enterprise Court (IPEC) has already had a chance to interpret the notion of pastiche.

In Shazam [IPKat here], John Kimbell KC held that pastiche entails the imitation of the style of pre-existing works and the use or assemblage of pre-existing works in new works, and also needs to be noticeably different from the original work. In the case at hand, based on this, it might be well arguable that Kate’s edits qualify for the defence.

However, in his Opinion in Pelham I, Advocate General Szpunar appeared to suggest that pastiche – like quotation, caricature and parody – should be in any event justified by the intention of entering into a dialogue with an earlier work or protected subject-matter and/or the ideas conveyed therein. If the dialogue requirement was – correctly – given normative weight, then the pastiche defence would be likely inapplicable in the case at hand.

In sum: it is not only conspiracy theories about Kate to abound, but also copyright issues ... Happy start of the week to all IPKat readers!