Case No. 36 Haddock and Others v Board of Inland Revenue

The plaintiff tried to reduce his taxes by arguing that arts & literature should be entitled to the same benefits that trade & commerce already enjoyed for “income-tax purposes under the heading of (a) Expenses and (b) Wear and Tear of Machinery and Plant.”[1]

The court agreed on the first issue of Expenses since, “The manufacturer of soap, who makes and sells soap to the value of ten thousand pounds, at a cost to himself of eight thousand pounds, is taxed upon two thousand pounds. If there is no profit there is (in theory) no tax.”[2] This led the court to oppose the injustice whereby, “The position of the author, artist, or composer is very different. The author is taxed, practically speaking, not on profits but on receipts, on almost everything that comes into the till. … [The author] cannot write about nothing (though one or two come very near to it). The whole of life is his raw material and, like other raw material, it has to be paid for.”[3] As a result, the court answered the questions of, “[how] can a man write about Monte Carlo or Cowes unless he goes to Monte Carlo or Cowes? How is he to study and depict the gilded life of Society without constant visits to the Saveloy Grill Room, to Covent Garden, to the Riviera, and other places where Society is to be found?”[4] by pointing out that “it is not denied that if a soap-manufacturer were compelled for business reasons to visit Cowes or Monte Carlo he would be permitted to deduct the necessary expenses of the expedition when calculating his taxable income. I see no reason why [an author] should not do the same.”[5]

The court also agreed on the second issue of Wear and Tear of Machinery and Plant since, “The author’s machinery and plant are his brain and his physique, his fund of inventiveness, his creative powers. These are not inexhaustible; they are seldom rested (for the reasons given above); the strain upon them increases as the years go by, and in some cases, I understand is aggravated by late hours and dissipation. If it is proper for the soap-manufacturer to be relieved in respect of the wear and tear of his machinery and the renewal thereof (which money can easily buy), how much more consideration is owed to the delicate and irreplaceable mechanism of the writer!”[6]

After righting the unjust taxation of arts & literature vis-à-vis trade & commerce, the court did not rest but continued with a lengthy justification for its decision: “There seems to be a notion abroad (especially in Parliament, where every erroneous notion is carefully incubated) that the author deserves less generous treatment than the soap-manufacturer, on the ground that the latter is an employer of labour. … The authors, writers, and composers are in a sense the biggest employers in the country, for they are the only original creators of employment. Their books, their articles, their music must be typed and printed and bound and distributed, performed upon the stage, the wireless, the gramophone, and the screen. The publishers, printers, compositors, bookbinders, and booksellers, the actors, musicians, singers, and stagehands – nay, the very newspaper proprietors and their enormous staffs, owe their employment, their earnings, and their profits to the creative mind and technical skill of the writer, since without him their occupation would be nothing and their machines be silent. He is the producer and they an army of middlemen; he is the true creator of wealth, and they, if I may employ the genial language of a certain political party, are but parasites upon his brains and labour. Yet Parliament, in its recent Derating Act, designed to encourage and increase employment, extends the privileges of that Act to the printer and not to the author who finds employment for that printer, ‘derates’ the ‘factory’ section of a newspaper office, but not the editorial side, without which the factory would be idle and valueless. My Lord, how characteristically crass of Parliament!”[7]

Case No. 38 Rex v Cochran

Another plaintiff also protested the differential taxation of arts & literature vis-à-vis trade & commerce by refusing to pay the Entertainments Duty on theatre productions such as “a religious mime called The Miracle, an historical tragedy by the poet Shakespeare, and a comic opera written by Mr. Albert Haddock.”[8]

A most sympathetic jury agreed with the plaintiff after receiving jury instructions that sounded more like a summation of history: “The public memory is short, and the historical knowledge of many of us is defective; yet it is surprising that the newspapers of our land do not give more attention to the Entertainments Duty and more support to those who agitate for its remission or reduction. For in essence it is dangerously similar to those Taxes on Knowledge which were remitted after a protracted struggle only eighty years ago: taxes on the communication of minds, taxes on the distribution of information and ideas, taxes inimical to freedom of expression, and taxes levied with especial harshness upon the Newspaper Press.”[9]

The court generously paired its history lesson with a civic lesson: “Therefore they should ever be on their guard against any encroachments upon liberty of expression; and therefore, I repeat, it is strange if they do not show an active and fraternal interest in the struggles of the theatre. For, though they may be surprised and even indignant to hear it, there is, in the account of principle, no real distinction between the two institutions. Both are channels for the communications of minds, for the distribution and exchange of thoughts, ideas, and information. A tax upon either is a tax upon knowledge and literature.”[10]

It is no surprise that the jury agreed with the plaintiff, especially after hearing a civic warning from the court that: “The tax is levied not upon profits but upon receipts, and in that respect is almost unique. It is levied not upon gamblers, bookmakers, usurers, racecourse touts, idlers, thieves, vagabonds, card-players, misers, or moneylenders, not upon those who sit in their homes or hoard their money to the prejudice of trade and employment, not upon those who devote their time and energy to the suppression of people’s pleasure, but upon respectable, good-hearted citizens who spread happiness, instruction, and culture among their fellows and maintain many thousands in employment, either by providing or attending (and thus supporting) what are loosely called places of public entertainment. When I consider this tax I am forced to the conclusion that in the opinion of the Legislature the business of entertainment has a criminal character, or at least is so offensive that public policy demands its discouragement and gradual suppression.”[11]

Case No. 52 MacIntosh and Others vs Haddock, Haddock, Haddock, Haddock, and Haddock, Ltd

This last example of how to reduce taxes on arts & literature illustrated how the corporate system had been subsidizing trade & commerce. Mr. Haddock was a writer who “following the example of other and more prosperous writers, he turned himself into a limited company … [in the same manner as] a bootmaker turned himself into a company … [thereby taking] legitimate advantage of the laws of the land in order to ease the burden of taxation at certain points where admittedly it bears with undue severity upon the better class of author.”[12]

The court easily accepted that a corporation can write books just as it can make shoes: “A corporation has the same powers of contracting as a natural person, and if it can write a good contract why not a good poem or book? It can be sued for libel and summoned before the magistrates to answer for an obscene or blasphemous publication; so there is no danger there.”[13]

The court just as easily – and most eagerly – accepted that a corporation can own copyrighted works in perpetuity, since literary works do not enter the public domain until fifty years after their author’s death and a corporation never dies (unless it is dissolved). In doing so, the court rejected the policy argument that “by this arrangement those writers who are not corporations are placed at a disadvantage because they cannot secure such favourable terms; and together with certain publishers and others who make a cheap and profitable business of the exploitation of non-copyright works, they contend that in justice and equity the company should be dissolved.”[14] Instead, the court advised such writers to incorporate in order to join Mr. Haddock in dodging the Copyright Act![15]

A.P. Herbert’s misleading cases continue to entertain because such fiction still has much to reveal about judicial prejudices and to teach about legal processes. Perhaps this judicial satirist’s legacy will be to inspire intellectual property students to convince tax collectors this year that arts & literature can be and should be subsidized even more.

Shen Goh is an instructor and PhD candidate at Osgoode Hall Law School.

[1] AP Herbert, Uncommon Law – Being 66 Misleading Cases revised and collected in one volume (Great Britain: Redwood Burn Limited, 1979) 42 at 231.

[2] Ibid at 231-232.

[3] Ibid at 232.

[4] Ibid at 233.

[5] Supra.

[6] Ibid at 234.

[7] Ibid at 234-235.

[8] Ibid at 243.

[9] Ibid at 243-244.

[10] Ibid at 246.

[11] Ibid at 247-248.

[12] Ibid at 327.

[13] Ibid at 328.

[14] Ibid at 330.

[15] Ibid at 330-331.

The post Branding Arts & Literature: More Misleading Cases by A.P. Herbert appeared first on IPOsgoode.

After graduating with a law degree from Oxford, A.P. Herbert decided to serve the British people by making law as a Member of Parliament instead of practising it as a lawyer. Nevertheless, he had much to reveal about judicial prejudices and to teach about legal processes in that he authored in , and were televised by the

dealt with the question of when literary criticism became defamatory. As summarized by the court, “The facts are simple enough. The defendant, Mrs. Tulip, in reviewing a recent work of Miss Clelia Trott’s, a book called Midnight, employed the following words: ‘It is no good, Miss Trott. All your murders and detectives, your vamps and mysteries, do not deceive us, charming though they are. The truth is, Miss Trott, you are a bit of a highbrow.’ Miss Clelia Trott, so far from being disarmed by the sprightly and almost complimentary manner of review, has brought an action for defamation, complaining particularly of the word ‘highbrow’, which is said to have prejudiced her professionally as a writer of disturbing narratives for railway reading or, as they are sometimes called, it appears, ‘best-sellers’.”[1] The court found for the plaintiff because it agreed that being characterized as highbrow was “so revolting that no lady or gentleman of right feeling could well submit to be named by their name without some effort to secure such protection as the law affords.”[2]

Case No. 11 Suet v Haddock was equally unforgiving in finding that commercial criticism can also be defamation. The jury was instructed as follows, “Gentlemen, in this case the plaintiff is a manufacturer, and the defendant, Mr. Haddock is among other things, an author, which fact should alone dispose you in the plaintiff’s favour; for, while the lifeblood of our country is its trade and commerce, we do not, fortunately, depend upon our literature for anything that matters.[3] … The plaintiff manufactures, among other things, a patent medicine called SINKO, which is widely advertised as having the power to remove or remedy ‘That Sinking Feeling’. Now what the defendant wrote about SINKO was brief and blunt: ‘SINKO does not remove That Sinking Feeling, for I have tried it.’ The plaintiff says that these words are defamatory and claims damages. The defendant says that the words are true, or in the alternative that they are in the nature of fair comment upon a matter of public interest.”[4] It is interesting to note that the jury in this case was instructed to award damages of £10,000 pounds for commercial criticism, whereas the previous case only awarded damages of ¼ of a penny for literary criticism. Was this the natural result of the bias favouring trade & commerce over arts & literature? Or could it also be due to another bias arising from the fact that this plaintiff was a man while the previous plaintiff was a woman?

Case No. 35 Bacon v Egg; Kidney v Egg may shed some light on the above questions. Mr. Bacon wrote a play entitled Between Ourselves. Mr. Kidney is the theatre manager who staged it. Mr. Egg is the dramatic critic who published a negative review of it: “Dialogue, deplorable; plot, puerile; characterization, childish … The fact is, Mr. Bacon does not begin to know his business; and after this production we begin to doubt whether Mr. Kidney knows his.”[5] The jury awarded damages of £10,000 pounds for this dramatic criticism[6] – the same amount a man had received for commercial criticism. Perhaps we should not hasten to compare these cases through critical feminist perspectives; after all, there is an obvious difference between characterizing a woman as “highbrow”[7] and characterizing a man as “incompetent”.[8]

As entertaining () as his misleading cases were, A.P. Herbert always remembered that they were fiction. The same cannot be said of his readers. reported Case No. 32 Board of Inland Revenue v Haddock as a real case with the heading, “A Check Can Be Written On A Cow.”[9] reported Case No. 5 Rex v Haddock to illustrate how no American court could violate “the general maxim that people cannot be punished for violating laws that have not been announced and defined”[10] by quoting the following paragraph from the offending British opinion: “‘It is a principle of English law’ said the Court of Criminal Appeal, ‘that a person who appears in a police court has done something undesirable, and citizens who take it upon themselves etc., etc., (exactly as above) … It is not for me to say what offence the appellant has committed, but I am satisfied that he has committed some offence for which he has been most properly punished.’”[11] That legal publication also indexed the fake reference of Rex v Haddock, C.C.A. miscellaneous law, Criminal Law (31) 1927.

Was that entertaining? Or was that dangerous? Just as not all that glitters is gold, not all fake news are equally tongue-in-cheek. If we do not learn about history, we will not learn from it and are doomed to repeat it.

Shen Goh is an instructor and PhD candidate at Osgoode Hall Law School.

[1] AP Herbert, Uncommon Law – Being 66 Misleading Cases revised and collected in one volume (Great Britain: Redwood Burn Limited, 1979) 42 at 43.

[2] Ibid at 52.

[3] Ibid at 66.

[4] Ibid at 68.

[5] Ibid at 224-225.

[6] Ibid at 229.

[7] Although the female’s complaint was that the term ‘highbrow’ prejudiced her professionally, the court ignored the issue completely.

[8] Although the men’s complaint was that “Mr. Egg was not invited to express an opinion at all” (Ibid at 225), the court replaced their baseless complaint with its own lengthy discussion on how an honest opinion may still be professional defamation (and decided within that discussion that arts & literature should be equal to trade & commerce): “For example, it is defamatory to use expressions reflecting upon a man in the way of his trade, profession, or calling. The law of this businesslike land is jealous to protect our professional reputations; and spoken words reflection upon them (by a special exception to the general law of slander) are actionable per se, without proof of special damage. To say of a doctor that he had no knowledge of medicine, of a solicitor that he knew nothing of the law, or of a banker that he did not know his business would without doubt be defamatory, however honestly the opinion was held and however moderately that opinion was expressed. … There cannot be one law of libel for the author and another for the financier. An imputation of profession incapacity or unfitness is as damaging to the one as it is to the other; and each must be entitled to the same remedy at law, unless we are prepared to say that the author is a kind of outlaw, of having a lower status than the solicitor or business man and entitled to a lower standard of justice. Unfortunately this view is very commonly held, and it has been encouraged by the feeble acquiescence or noble disdain of the writing profession; but in this Court it will receive no encouragement. I hold that the author, however loathsome to the ordinary citizen, is in the eyes of the law a professional man; and the newspapers must be as careful what they say about his professional fitness as they would in the case of a surgeon.”

(Ibid at 228-229) [Emphasis added].

[9] Ibid at Introduction.

[10] Supra.

[11] Supra.

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Only one post remains on the and it is tellingly tagged "RIP" and "the dion effect." Dion's lawyers sent Nick Angiolillo, the New 91��ɫ blogger who runs the satirical Tumblr site which mocks silly photos of the singer, letter that him to remove all the original posts.

Angiolillo claims that he is likely in the right, but that he doesn't have the financial resources to engage counsel to respond; a wise choice on his part. There are a lot of issues at play here. Firstly, there may be a marked difference between the privacy rights and image/likeness sovereignty that can be demanded by an average citizen as opposed to a celebrity. Another issue here is practically a staple of many IP dilemmas: one nation's protection may be different than another’s, but a URL is, for the most part, international.

What about the fact that they are in many cases the work of photographers? What would be most interesting to know is whether or not Angiolillo purchased the images and rights from photobanks or simply cribbed them off a Google search. If the latter, then Celine Dion's cease and desist letter may only have been the first of several to arrive.

This brings us to an interesting point: attributing the rights of a photo to the photographer may be an outdated and archaic way of organizing online property. Indeed, now that one cultivates, fosters and monitors their online presence, one’s reputation seems to be more valuable than a single photo (or in this case, many). When photographs were primarily utilized by print sources, their regulation and distribution could be easily controlled by the Copyright Act. The world of Internet, however, leads one to ask: what are the rights of the subjects of these photos?

And finally, on the self-expression side, is there any sympathy for the fact that the blog was a genuine piece of tongue-in-cheek parody and not some kind of explosive and commercialized meme? A similar, but intensely more sophisticated site, , has t-shirts and advertising and thus the bloggers in this case are making money by making fun of celebrities. Angiolillo's grassroots site stands in remarked contrast.

Canadian courts have the 'parody defence' of material subject to the Copyright Act. This case, however, would likely be subject to US standards of 'fair use', where using material for parody purposes has been established a .

The ultimate lesson, however, is that in the early days of any legal arena with many suits pending and little precedent work – as most certainly the case with digital intellectual property and likeness law – those with the money to engage lawyers have the upper hand.

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The race for political office is competitive and fraught with risk where adversaries seek out support by advertising and creating political platforms to appeal to the majority of voters.  As the cost of political campaigns mount, politicians on the campaign trail seek advantages whenever possible.  Pop culture and entertainment has increasingly captured public interest, and it is no surprise that actors, actresses, music and other aspects of pop culture have been incorporated into political campaigns as effective advertising tools.   

Music in particular has been utilized to draw attention from fans of the works of memorable artists.  This can attract the ire of artists who neither endorsed nor allowed the use of their copyrighted music for political purposes.  However, while legislation protects copyrighted works, fair-use exceptions for copyright infringement are granted in the U.S. when a parody is made of an artist’s work.  It is this exception that some politicians have attempted to exploit when modifying music for political purposes.  The U.S. District Court for the Central District of California decision in is an example of the intersection between the copyright exception granted for a parody and the modification of a musical composition for political campaigns.

The defendant, , is a California assemblyman who was seeking the Republican nomination for one of California’s U.S. Senate seats.  To further his political campaign, DeVore revised the lyrics of “The Boys of Summer” and “All She Wants to Do Is Dance” which the plaintiff, , had written.  These modified versions of Henley’s songs poked fun at Barak Obama, Nancy Pelosi, Obama’s supporters, and the Democratic Party against whom DeVore was competing for a U.S. Senate seat.  Subsequently Henley battled to have the modified songs removed from and later sued for direct, vicarious and contributory copyright infringement, as well as trademark infringement and false endorsement under the .

DeVore attempted to counter Henley’s claims by asserting that fair use applies because his versions of the Henley’s songs were parodies.  Both parties moved for summary judgment.   The Court ruled that DeVore’s fair use defence was inadequate, largely because his work resembled satire rather than parody.  Despite the defendants' assertions that the modifications to Henley’s songs were to create themes of ‘nostalgia’ and ‘disillusionment’ to mock Henley and other Obama supporters, and criticise previous American foreign policy, the Court found that DeVore’s work was satirical in nature.  The Court distinguished satire from parody as previously explained in , which states that the parodist is justified in using the copyrighted work because a parody’s effectiveness “necessarily springs from the recognizable allusion to its object through distorted imitation...the parodist has no alternative but to use the work.” In contrast the satirist who ridicules subjects unrelated to the work lacks the same claim to use of the work, which the satirist “merely uses to get attention or to avoid the drudgery in working up something fresh.” 

In reaching its decision that DeVore’s modifications to Henley’s songs were not fair use, the Court conducted a which considered: 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Consideration of these factors influenced the Court to find that DeVore’s modification of Henley’s songs should not be considered fair use for the following reasons.  First, the Court held that the defendant’s use of Henley’s songs was commercial in nature because DeVore stood to gain both publicity and campaign donations from their use of Henley’s music.  Second, DeVore borrows from musical compositions that are highly expressive works, which are at the core of copyright law and deserve protection.  Third, an extensive amount of content was borrowed from Henley’s compositions greatly weighing against the fair use defence.  Lastly, the defendants were unable to show that their use did not harm the market for the plaintiff's work. 

This decision clarifies the extent to which a copyrighted work may be utilized to form a political critique in the U.S., and may prove influential for similar Canadian cases.  Politicians and others who wish to utilize copyrighted works for political critique must now rethink these strategies and seek out alternative methods to convey their message.

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