Intellectual Property and the Queen's 'Salute'

A disturbing film clip and pictures were published by The Sun newspaper this weekend which have caused an international stir.  As readers will no doubt be aware, the images concern what appears to be a Nazi salute made by the Queen when she was only 6 years old.  This begs the question what action, if any, is available to Buckingham Palace?

Reaction

Staff at Buckingham Palace have been restrained in their response thus far merely saying that they are disappointed that the newspaper has seen fit to intrude into the Royal family's private life.  Other reports have not been so subdued with the BBC suggesting that the Palace may sue the Sun for infringement of copyright as a result of the fact that the film clip was released on their website. Still pictures from the film which were printed in the paper would not constitute fair dealing for the purposes of new reporting because photographs do not benefit from this exception.

Legal 'Issues'

There are considerable legal problems with mounting the course of action suggested by the BBC.  These are considered briefly below and before they are it is important to note that the film was reportedly shot in or around 1933 as the relevant legislative provisions and timings flow from this date.

Prior to the 1956 Copyright Act, i.e. when the film of the Queen was taken, films were not protected by copyright. The 1911 Act mentioned 'cinematograph' films but only in the context of being a form of the performance of literary, dramatic or musical work, however, they were not protectable per se. So films of a factual or documentary nature were not protected.

The 1956 Act enacted limited retrospective protection by way of treating a film made before 1957 as a series of still images, each of which would be benefit from protection as a photograph.  Consequently the film gained protection as a series of photographs.

Normally the next step in considering any copyright action would be to determine who the author was and when they died.  However, for photographs created prior to 1 June 1957, section 21 of the 1911 Act applied special treatment to photographs.  The term of protection was 50 years from the making of the original negative.  This applied equally to published and unpublished photographs.  What is more, although the film would still have been protected under section 21 when the 1956 Act came into force, the transitional provisions of the 1956 Act did not change the provisions for photographs made before 1 June 1957.  As a result copyright in the film would have expired around 1983.

The other way in which a challenge could be mounted could be using the law on Crown Copyright.  The 1911 Act introduced the concept we consider to be Crown Copyright.  Such protection lasts for 50 years from the date of first publication of the individual work. Presuming that the film has never previously been published, that would mean that the clock for the copyright term has not yet started.  Further, unauthorised publications, such as that by the Sun newspaper, would not start the clock ticking.  The major stumbling block in bring an action would be whether the film attracts 'Crown Copyright at all.

The wording of section 18 of the 1911 Act says:

"Without prejudice to any rights or privileges of the Crown, where any work has, whether before or after the commencement of this Act, been prepared or published by or under the direction or control of His Majesty or any Government department, the copyright in the work shall, subject to any agreement with the author, belong to His Majesty, and in such case shall continue for a period of fifty years from the date of the first publication of the work".

In order to meet this criteria the then King, George V, would have needed to have directed that the film be made.  This is possible however from the circumstances and individuals shown in the film, it seems likely that the person filming the goings-on was the King's second son, Prince George, who later became King George VI. Given the private nature of the film, and following the dicta of the court in the case of the Black Spider memos which we have previously reported on private activity would not constitute the duties or authority of the 'Crown'. It remains to be seen whether the Palace will pursue this matter further but given the negative publicity and the less than robust statement emanating from Bucking Palace it seems more likely that the 'commercial' decision will be to let this be 'tomorrow's chip paper'.  This will however depend entirely on the fall out from the story and what happens next as the Daily Mail was today reporting that a new embarrassment over the leaked footage could come to light.  It suggests that an explosive Channel 4 documentary will reveal details of how Prince Philip's older sister, Sophie, met and admired Adolf Hitler as documented in her unpublished memoir.  Sophie joined the Nazi Women's Auxiliary and was photographed at Goering's wedding, on the top table with Hitler, and her husband Prince Christoph von Hessen was head of the SS in the Air Ministry. The couple named one of their sons Karl Adolf in Hitler's honour after meeting the Nazi leader in 1931 or 1932, before he became the German Chancellor.