As we reported in September 2024, the English High Court recently heard an interesting case concerning "culture jamming” and the limits of an artist's freedom of expression. The action was brought by Icelandic fishing company Samherji against an artist, Oddur (or Odee) Fridriksson, over a website and press release he created in the claimant’s name.
Master Teverson has now granted Samherji summary judgment on its claims for passing off, copyright infringement and malicious falsehood. He summarily rejected Mr Fridriksson’s defence which was largely based on Article 10 of the European Convention on Human Rights (ECHR).
Deception, impersonation and misinformation vs an artist's freedom of expression
The judge distinguished this case from the Dutch case between Nadia Plesner Joensen and Louis Vuitton, concerning the use of images of LV bags in an artwork about Darfur. Unlike the Plesner case, he said, Mr Fridriksson’s performance artwork “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.”
Master Teverson concluded that, in balancing the convention rights, Article 10 did not enable Fridriksson to oppose the transfer of the domain name or to make further use of Samherji’s trade mark and logo.
On passing off, he said there was a “misrepresentation” that the website that Mr Fridriksson had set up was that of the claimant, and as a result Samherji “had lost control of its goodwill in the UK”. He added that where a website has been set up and operated to appear to be an official website of a company “the court will infer that damage to that company’s goodwill is likely to have occurred”.
In view of both these types of passing off, Mr Fridriksson had no prospect of success in opposing at trial a final injunction.
Not parody or fair dealing
Turning to copyright, the judge said this was not a case of caricature, parody or pastiche and did not amount to fair dealing:
“To create a website as a vehicle through which to put out a fake press release, containing admissions and commitments which the Claimant has not made cannot with any realistic prospect of success be relied upon as a fair dealing. I accept that the defence should be construed liberally to give effect to Article 10 but I do not accept that it is realistic to invoke Article 10 where a completely false and misleading press release has been put out.”
The defendant also had no prospect of success regarding the malicious falsehood claim as the domain name and website were instruments of fraud as they were set up with the 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.”
What does this mean?
The result of the decision is that Samherji has been granted an injunction and damages (though the judge expressed his hope that, given that injunctive relief was awarded early on, the company would accept “a small sum” in damages).
This case illustrates the tension that can arise between IP rights and freedom of speech. However, on the facts of this case, the judge seems to have found it fairly easy to reject the Article 10 defence given the blatant and admitted deception and misrepresentation. Other cases of parody and pastiche may be more finely balanced.
To find out more about the issues raised in this blog contact Rosie Burbidge.