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Copyright

Q: Misleading director credit

If a theatre advertises a play under the name of another director who has had no involvement whatsoever in the making of that play, what legal remedies does the director have?

A: You say the director had no involvement in the making of the play, which I take to mean he was not an author but was he the director of a previous production of the play? It depends what he was described as doing or having done. For example, suppose a play is advertised as 'a new production by Z of a play originally directed in 2002 by X at the Y Theatre' the purpose being to indicate that, although this is a new production, the well known director, X, thought sufficiently highly of the play to have directed it several years ago. If such a description were correct, it would be unobjectionable.

However, if the advert falsely attributed either the authorship of the play or its past or future stage direction to the individual concerned, then that person (X) would or could have several different legal causes of action.

Firstly, he would have a claim for breach of his moral right not to have the authorship of a literary or dramatic work falsely attributed to him under section 84 of the Copyright, Designs and Patents Act 1988, although whether that would extend to stage directions depends on whether or not stage directions can themselves be categorised as a dramatic work, which is debateable. Section 84 expressly extends the moral right of no false attribution to a film director but is silent in this respect about stage directions. If the moral right is breached, the remedy lies in an injunction (restraining order) and damages for breach of statutory duty based on injury to reputation and any loss of future earning potential, which is largely subjective and impossible to quantify or predict with any degree of accuracy.

Secondly, X would or might have a good claim for 'passing off', which arises where a misrepresentation is made by someone in the course of business about the goods or services of that business to its prospective customers and is calculated to injure the goodwill of another's business or profession (or such injury is a reasonably foreseeable consequence), and where damage actually results. The remedies are the same as in the case of breach of moral rights, and the two causes of action exist side by side and may be pleaded together or in the alternative. The difference is that no actual damage need be proved for breach of the moral right but must be proved to succeed in passing off. Thus, if X's reputation, far from being injured by the false attribution, were to be enhanced by it due to the new production being the subject of great critical acclaim, X would have no cause of action in passing off but could get an injunction to restrain breach of his moral right.

Another possible cause of action lies in malicious falsehood which arises at common law, where a false statement, which is not necessarily defamatory and does not necessarily have the characteristics of passing off, is made about another person and is calculated to cause and does cause actual damage. It is necessary here to prove both malice and actual damage, which might be difficult in your case.

First published April 13th 2006