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Q: Changing review quotes

I'm a publicist for a show which has had several reviews, none favourable. However, if I quote certain phrases from each, it will give a much more positive slant on what the critics have said. Can I do so?

A: This is a tricky question, prompted no doubt by the recent report in The Times about this common practice, which has been widespread in the industry for many years. Because it is such common practice, and does not appear to have been the subject of any legal challenge in the past so far as I am aware, the short answer is that probably you will get away with it whether legally objectionable or not.

Where a theatre critic's 'review' contains some good and some bad comments, it is perfectly legitimate to quote the good without the bad, even where his overall conclusion is negative but only if the quoted comment is itself accurately repeated without distortion on a standalone basis. A hypothetical illustration will show you what I mean. Suppose a review contains the following opinion: "It is a brilliant play with a talented cast but the production is poor and did not realise the work's full potential. Not great entertainment. A disappointing evening." Now suppose the theatre's publicity material for the play from the review concerned merely repeats "a brilliant play with a talented cast" that would in my view be acceptable, despite the absence of the reviewer's negative comments, because the reviewer's express opinion of the play as brilliant and of the cast as talented was accurately repeated and attributed to the reviewer concerned. There is no obligation in such a case to publicise the separate negative comments.

However, if the publicity material were to quote the words "great entertainment" without the word 'not', that would be to distort (in fact in this case wholly negate) what the reviewer clearly meant as to the production's entertainment value and would be actionable, both by the critic who wrote the review and by an aggrieved member of the public for infringement of the moral right not to have such material falsely attributed to someone who did not write it. Possible remedies would be both damages and an injunction (restraining order). The critic could claim damages including any financial loss he may have sustained. A member of the public could claim damages for the cost of his theatre ticket and travelling costs and possibly compensation for diminution of his enjoyment of the performance, if he could establish that he was induced to purchase a ticket by the falsely attributed, purported quotation. An alternative claim could be made by the critic for malicious (injurious) falsehood, affecting his professional reputation, for which damages would be assessed as in a claim for defamation. Yet a further alternative civil action would lie by each of the writer and member of the public for the tort of deceit, provided that quantifiable, financial loss could be proved by the claimant.

The borderline between what is legitimate and what is not is a very narrow one. I have given an extreme and clear illustration but it is possible to conceive of borderline cases where a word or a few words are omitted from a reviewer's comment (usually indicated by a series of dots) which arguably may or may not distort or negate the reviewer's intended meaning, depending on the circumstances, for example, where the word 'quite' were omitted from the phrase "quite good entertainment". The theatre would argue that 'quite good' is still 'good' and the complainant would argue it is less than 'good'. Such tortological arguments are unlikely to get to court, as the outcome would be unpredictable with a sufficient degree of certainty.

Finally, a word about copyright infringement in this context. A theatre critic's review is a literary work protected by copyright, as is a "substantial" extract from such review, so an unauthorised publication would be actionable subject, however, to the following possible defences:
1. That the quoted extract is not substantial, which is to be judged not in terms of quantity but by its quality and importance in the context of the whole, bearing in mind that the mere fact of the quote being used in publicity material is an indication of its relative importance.
2. That the words quoted are so commonplace as not to pass the requirement of originality for copyright protection, which will depend on the precise words used each case.
3. That the quotation is expressly attributed to its author, and its meaning is not distorted in manner indicated above, and therefore the fair dealing exception to copyright infringement applies and finally,
4. That the custom and practice of using attributed quotes from reviews is so well and long established in the industry as to be regarded as having been accepted by reviewers and public alike as being unobjectionable.

It is a fine line to tread, but hopefully you should get some help from the principles enunciated above.

First published August 3rd 2006