The High Court, in Fleming & Ors v Teilifís Mhaigh Eo Teoranta t/a Irish TV, awarded €150,000 in damages to a plaintiff, his manager, and their production company arising from the unauthorised broadcasts of the plaintiffs’ DVD on the defendant’s TV channel.
Background
These proceedings were initiated by Tommy Fleming (the first named plaintiff), a successful music artist who had toured extensively and built a strong reputation both in Ireland and beyond. Mr Fleming had also produced several albums and film recordings, including the particularly successful “Voice of Hope” production which formed the basis of the proceedings in question.
Mr Fleming was the joint owner, with his wife and manager Ms Mitchell-Fleming (the second named plaintiff), of all intellectual property rights subsisting in the “Voice of Hope” production. Together, they also owned the third named plaintiff, a company established to oversee their business affairs.
Teilifís Mhaigh Eo was a limited company providing broadcasting services both in Ireland and internationally. In particular, it was the proprietor of the satellite television channel, Irish TV. In December 2016, a liquidator was appointed to Teilifís Mhaigh Eo and the company played no active part in the proceedings after that point. Notably, it did not deliver a defence to the claim.
The Dispute
Prior to launching in May 2014, Irish TV received a DVD copy of “Voice of Hope” from Ms Mitchell-Fleming for review purposes only. The High Court noted that it was not accepted industry practice to broadcast from a DVD. Instead, if a broadcaster decided to show a production based on a sample provided, a beta tape would then be obtained. Beta tapes are the standard form of recording used for broadcasting purposes and deliver a better quality of broadcast.
Irish TV subsequently, and without the consent of the plaintiffs, proceeded to broadcast the “Voice of Hope” production on two occasions under the title “Tommy Fleming Musical Extravaganza”. After the second transmission, Irish TV was notified by the plaintiffs that it had no right or licence to broadcast the production.
The plaintiffs contended that they had suffered significant damage and loss as a result of the unauthorised broadcasts, including:
- damage to the goodwill and reputation of Tommy Fleming caused by the inferior quality of the recording broadcasted;
- significant devaluation of Tommy Fleming’s name by using the word “extravaganza” which, it was claimed, equated his performance to a circus;
- a drop in sales of the “Voice of Hope” DVD;
- a decline in favourable licensing fee arrangements with broadcasters;
- a negative effect on ticket and merchandise sales;
- unprecedented losses made while touring in the United States of America; and
- additional expenses incurred on marketing and advertising to redress the drop in ticket sales.
Decision
The High Court found that Irish TV’s broadcast of the DVD recording without the first named plaintiff’s consent was unlawful and infringed the plaintiffs’ various intellectual property rights. The Court was also satisfied that the plaintiffs had suffered loss or damage and that, in particular, the first named plaintiff had suffered a serious setback to his career. Damages of €100,000 for intellectual property infringement were awarded to the first and second named plaintiffs. An additional €50,000 in damages were awarded to the third named plaintiff as a contribution to the monies expended in minimising the losses incurred.
Comment
This decision is a reminder for fledgling broadcasters, and indeed for start-ups of all kinds in the new media space, that suitable licensing arrangements are crucial. Copyright works broadcast or otherwise made available (eg online) without appropriate permissions can and do lead to infringement proceedings being taken in Court. Artists and producers, meanwhile, should take care that sample copies of their works are accompanied by appropriate warnings to ensure that permission to broadcast is not assumed.
Contributed by: John Sugrue & Anna Ní Uiginn
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