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Love Poems and the Issue of Consent

We’ve been talking to our media clients about the recent decision in Tumber v ITV [2017] EWHC 3093 (IPEC). The judgment kicks off rather promisingly with:

In January of this year the claimant, Mr. Tumber, wrote a love poem…

This poem was sent to an employee of ITV’s news show, leading to an interview being arranged. The poem was then published on the ITV website, along with a copy of the interview with Mr Tumber. Mr Tumber claimed that he gave no permission for any of this and that the publication infringed his copyright.

In a preliminary hearing, which dealt with a number of arguments brought before Mr Justice Hacon, a few useful pointers emerged on good publication practice that all who interact with creative writing should observe:

  • Letters sent to papers by punters often come with an implied licence that they are ok to go to print… but this is not true of love poems
  • ITV claimed that they had reported the piece fairly. Here the court found that if ITV’s website had improved sales of the poem, this would help to establish that defence (amongst a number of other factors, naturally)
  • The damages were likely to be Tumber’s case, and tiny damages are best fixed by offers to settle. The strong indication here was that defending the case heavily and going all the way to trial would be an inappropriate way of dealing with the matter
  • Tumber selling his version of events to the papers was not seen to be improper conduct (though perhaps a bit distasteful, considering his case)

So what does this teach us?

Be careful to get consent before you publish, check to see whether you have improved the claimant’s financial position, offer to settle where it is sensible to do so, and lastly, be prepared for the litigant to sell their story to the press – though you may have a case against them if what they are saying is untrue.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Categories: IP & Media | Digital Media & Technology

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