OK! is suing rival celebrity magazine Heat for copyright infringement over an interview with Britney Spears' pregnant sister, Jamie Lynn Spears.
OK! had secured an 'exclusive' interview with Britney Spears' sister in which the 16 year old revealed she was pregnant - particularly topical given the media coverage about parenting in the wider Spears family. This propelled sales of OK! in the US towards the 2 million mark in the run up to Christmas.
Heat magazine had 'borrowed' - or 'quoted extensively' from OK!'s exclusive to the extent that OK! considers this to exceed any fair use and amount to blatant copyright infringement.
OK! is no stranger to litigation and the courtroom having seen off yet another celebrity magazine, Hello, in an epic court battle pegged on the rights to exclusive photographs of Michael Douglas and Catherine Zeta Jones' wedding. In that case OK! piggy-backed what was essentially a commercial damages claim for loss to sales through Hello's spoiler on the Douglas' privacy and confidentiality in their agreement with OK! over the exploitation of their wedding pictures.
A magazine - and in this case its publisher, Richard Desmond's Northern & Shell company - that will go the distance through the courts to protect its commercial interests (as it did in its litigation with Hello) is not going to let this 'extensive' borrowing from its exclusive pass unnoticed or uncompensated in the ever competitive celebrity magazine market.
So what's wrong with Heat quoting a bit from the OK! interview? This depends on how the parties and the court will interpret the context and 1988 Copyright Designs and Patents Act. Yes, one can make fair use of some attributed material but when one republishes a substantial or significant part of an original work - be that narrative, opinion or, as in this case, interview - then that can amount to infringement. In a commercial setting you can't just reproduce large sections of an interview from another magazine - even if you attribute it - if the effect is that you are basing your story substantially on the content from another source. This is particularly contentious when dealing with an 'exclusive' interview where the exclusivity (where genuine) means that the information is not readily available for the public or wider media to report on. It is the publisher that secures the 'exclusive' that at the same time buys itself commercial control over the copy it produces from such an interview.
Given OK!s track record it would be a brave and deep-pocketed Heat magazine that seeks to fight this one out in court. A settlement that compensates for the overzealous 'borrowing' seems most likely.
Heat magazine is still on the reputational back foot for the distasteful stickers it gave away towards the end of last year. It would do best to cut its reputational and financial losses and secure a few exclusives of its own.
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