In the media hype immediately before the start of the 2006 FIFA World Cup, a new film work by UK artist/director Alison Jackson was broadcast on Channel 4, Sven: The Cash, The Coach and His Lovers.
Described by one reviewer as 'an irreverent comedy documentary following the lives and loves of England manager Sven Goran Eriksson', the work collages true documentary interviews and archive material with Jackson's dramatised versions of incidents we have read occurred (or might have happened) but are still hard to imagine - using her cast of lookalike actors. These reported incidents, which have been both front and back page headlines over the past five years or so, include satirised constructions of Eriksson's imagined intimate moments in Team England's dressing room with Beckham or Rooney, and in the communal bath with the squad of players; in the English FA's board room with his employers, and they without him; with his coaching assistant Tord Grip and with his lovers Faria Alam, Ulrika Jonsson, and Nancy Dell'Olio.
Jackson's blending of fact with fiction and/or conjecture doubtless makes for intriguing and entertaining viewing. It also raises the inevitable question of how such work can be lawful and be lawfully broadcast on national TV; how does she get away with this? Jackson has successfully navigated potential legal pitfalls many times before in her previous works, including other Channel 4 specials Tony Blair: Rock Star, broadcast earlier this year, and The Royal Wedding last year, her TV series Doubletake (BBC 2002/03), and her book of photographs of lookalike celebrities, Private (Penguin, 2003).
The law of Confidentiality or Privacy was developed by the English courts in the 19th Century, and has been incorporated into the domestic laws of most developed countries throughout the world. Essentially, it aims to prevent confidential information (including what a person looks like in private), acquired (through say a still photograph or moving picture image) in confidential circumstances, from being exposed to the public. Classic examples were the photographs taken by a paparazzo of Princess Diana working out in private gym ('peeping tom' shots from a next door building), and those taken by a posse of paparazzi who chased Diana's chauffeur-driven car through the streets of Paris immediately before her death when the car crashed (the French courts recently ruled that the shooting of those photographs into the private vehicle - albeit that the car was on a public road at the time - was an invasion of privacy). It is a defence to charges of breach of confidentiality that the acquisition and public disclosure of confidential material was or is in the public interest - this will depend on the facts of each particular case. In Jackson's case, there are no actual invasions of privacy, rather the portrayal of imagined invasions, and therefore no breaches of confidentiality - as she says, 'I'm depicting what exists in the public imagination' with 'one foot in fantasy and one foot in reality.'
Defamation of character is the generic description for publication of a libel (written, printed, filmed, or represented in 2D/3D) or a slander (spoken), which damages a person's reputation by causing reasonable people to think less of him or her. Defences to charges of defamation include: that the published material was true or justified, or that it was 'fair comment', meaning that reasonable people would have taken the same view of the subject (even if they were driven by malice or hatred of the subject), or that it was 'privileged' - either absolute (as when giving evidence in court or speaking in Parliament) or qualified (fair reporting of matters in the public interest that are not motivated by malice or hatred). In practice, an offer of a public apology and/or a correction and/or monetary compensation for a libel or slander will prevent legal proceedings being taken. In Jackson's case, her targeted celebrities are sometimes objects of satire, possibly ridicule, certainly fun but, given the defences open to her and her publishers, the nature and range of her artistic credentials and professional standing, and the real risks of the general public or audiences/fans of celebrity subjects thinking less of them for bringing defamation proceedings, it would be difficult to envisage any such actions being taken - or any that could not be satisfactorily settled out of court. And note Jackson's skilful public comment on this latest work: 'I don't want Sven to be furious about it. I wouldn't want to upset him. I haven't made the film to wind him up. And I hope he wins the World Cup.'
A new area of law has been developed in recent years, chiefly in the US: so-called 'celebrity rights'. These are a combination of privacy and publicity rights that give celebrities the legal right to prevent their images being commercially exploited without their consent. Currently, there is only one federal celebrity rights law, very specific and narrow in scope, that is limited to the prevention of unauthorised use of a person's identity to create a false endorsement of a product or service: the Lanham (Trademark) Act. But many individual states have enacted celebrity rights into their state-wide legislation, and these variously enable celebrities to exploit the commercial value of their name, image, voice, or signature; in some states these rights pass to celebrities' estates or representatives who control and license the use of their commercial attributes.
Although celebrity rights are much more developed in the US, where a celebrity's image is seen as a potential trading asset, UK laws are currently far less developed. Trademark legislation throughout the world enables things of potential commercial value to be registered in a state or federal registry, for a fee, and gives the registered trademark owner a legal monopoly on the commercial use of that mark for a fixed period of time that can be renewed indefinitely. Things that can be registered, certainly in the UK and most developed countries, include names, images, voices, signatures, symbols, logos and sounds. Few UK celebrities register their commercial 'attributes' as trademarks, but doing so is an absolute prerequisite for any such celebrity trying to use trademark law to protect themselves against commercial exploitation of their registered mark (not against defamation or breach of confidentiality). Although breach of a registered trademark name, image, and so on, can be a criminal offence in the UK (for which the maximum penalty is ten years' imprisonment), courts would carefully consider the nature and extent of the unauthorised exploitation of a celebrity's registered trademark 'attributes'. In Jackson's case a court would be bound to weigh heavily in the balance the artistic nature and intent of her past and current work, her well-established reputation as an artist/director, and the non-commercial nature of many of her projects. Jackson's website (www.alisonjackson.com) contains still and moving picture images of many of her works, together with extensive published reviews and reported interviews in which she contextualises her work: 'We live our lives through screens now, whether they are televisions or our computers or our phones, and screens are hugely addictive. There is a gap between the facts, and how the media portrays stuff, and that's what these images fill. I'm especially interested in how we think we know people through imagery - it goes straight from eye to psyche, which makes it very powerful, and very seductive. It also makes it very easy to lie.'
© Henry Lydiate 2006