The High Court has handed down judgment in a case that considered the limits to an activist artist’s right to freedom of expression when set against the intellectual property rights of the company that was the subject of his stunt. The case also provides helpful reminders of the applicability of the parody and pastiche defences to claims for copyright infringement.

Background

The case concerned an elaborate stunt by Odee Fridriksson, a self-described ‘cultural activist’, against the Icelandic fishing and fish processing company, Samherji HF (“Samherji”).

In May 2023, Odee registered the domain name ‘samherji.co.uk’ and created a website, the homepage of which displayed the words ‘We’re Sorry’. As the judge noted, “the website was made to look as if it were the Claimant’s official UK website”.

Visitors to the site were encouraged to click on a link which directed them to a press release drafted by Odee but purporting to be from Samherji (complete with Samherji’s logo) in which it apologised for its role in the so-called ‘Fishrot Scandal’, a financial scandal involving the trading activities of former subsidiaries of Samherji in Namibia which was revealed by Wikileaks.

The fake press release was also sent to a number of prominent media outlets, although it appears that only one specialist outlet for the fishing industry reported the apology as genuine. The fake website and apology quickly came to the attention of Samherji who were able to ascertain that Odee registered the domain name, and Samheriji wrote to him requesting that he immediately stop all use of its trade marks and close the website. Odee replied that “at this point, we’re sorry to inform you that no changes will be made to the website or the artwork”.

Proceedings

Samherji duly applied for, and was granted, an interim injunction ordering Odee to (1) transfer the domain name to Samherji, (2) take down the website; and (3) ensure that the website and accompanying email accounts using the domain name were not operational.

Shortly thereafter, Samherji served Particulars of Claim and, in turn, an application for summary judgment on its claims for passing off, copyright infringement, and malicious falsehood.

As the judge explains, Odee’s principal argument in response to Samherji’s application was to assert his right as an artist to freedom of expression under Article 10 of the ECHR. In particular, he cited a number of decisions of the European Court of Human Rights which “state clearly that political expression, including expression on matters of public interest and concern, require a high level of protection”. One such case cited was Plesner v Louis Vuitton in which an artist (Plesner) created an illustration of a famished child holding a Louis Vuitton bag to contrast the attention given to the world of luxury and glamour to that of what was taking place in Darfur. The Court sided with Plesner, finding that there is “a fundamental right of Plesner that is high in a democratic society’s priority list to express her opinion through art. In this respect, it applies that artists enjoy a considerable protection with regard to their artistic freedom, in which, in principle, art may offend, shock, or disturb”.

Whilst the judge accepted that Odee’s case had some similarities with the Plesner case, he also noted “important differences”. For example, he said that in the Plesner case the artist was “using the Claimant’s reputation to pass on their message. In the present case, the Defendant created the Website as a vehicle for sending out a fake press release thereby putting words into the mouth of the Claimant which the Defendant considers the Claimant should have spoken in order to shame the Claimant and to draw attention to the Claimant’s involvement with the Fishrot Scandal.” Similarly, “in contrast to the Plesner case, the Defendant’s performance art-work involved, albeit for a limited period, a form of deception and impersonation and misinformation. The Defendant attempted to make it appear that the Claimant had made the statements and given the apology in the press release when it had not”.

The judge therefore rejected Odee’s submission that the interest of society in being able to be informed and to debate on matters of public interest should trump the interest of Samherji in having its reputation and intellectual property protected. Accordingly, he saw no justification for allowing the domain name to be retained or further used by Odee, particularly since they were created as vehicles for the fake press release and, as such, “the art work has been performed”.

Turning to Samherji’s claims in passing off and malicious falsehood, the judge found in its favour for each. On the matter of passing off, he found “that it could not realistically be argued that the use of the domain name and website caused no damage to [Samherji’s] reputation and goodwill”. On the claim for malicious falsehood, he said “the Domain Name and the Website were instruments of fraud in the sense that they were set up with the deliberate intention of deception and in the knowledge that their content was false. The falsehood was known to the Defendant and was central to his purpose. This was calculated to cause pecuniary damage to the Claimant”.

As for the claim for copyright infringement, Odee relied on the defences in sections 30 and 30A of the Copyright, Designs and Patents Act 1988, namely fair dealing for the purposes of criticism or review, quotation and/or parody and/or pastiche. Taking each in turn, the Court held that the use of Samherji’s logo and other copyright-protected works by Odee was to “give the website authenticity and not for the purpose of criticism or review”. The judge explained that “the criticism required is of ‘that or another work or a performance of a work’, which is quite distinct from criticism of Samherji’s conduct in relation to the Fishrot Scandal.

On the questions of parody and pastiche, the judge cited the recent case of Shazam Productions Ltd v Only Fools The Dining Experience & Ors, which considered in detail the relevant tests for each.

Crucially, he held that the use of Samherji’s works was intended to make it appear to be an official website. As such, neither the defences of parody or pastiche would be available since, in the case of the former, “it must evoke an existing work but be noticeably different from the original and constitute an expression of humour or mockery” and, in the case of the latter, “pastiche imitates the style of an existing work whilst being noticeable different from the original”.

In the light of the above, the judge granted summary judgment to Samherji.

To read the case in full, click here.