Frustration – Q&A

In these uncertain times, some people may have entered into contracts prior to 26 March 2020 when the Coronavirus Act 2020 was passed.  Here is a brief Q&A on how this might affect those contracts.

What is frustration?
The common law doctrine of frustration is where a contract may be discharged due to an unforeseen event occurring after the contract has been formed, rendering its performance impractical and/or impossible e.g. a death or incapacity of one party; or illegal due to a change in the governing law.

What are the grounds for frustration?
The grounds for frustration are, in general, if the intervening event is not the fault of either party; it occurred after the contract was formed and was unforeseeable by both parties at the formation; and it makes performing the contract impossible or performance as something radically different from what was in the contemplation of the parties when the contract was made.  The result is that the contract can be discharged and both parties relieved of their obligations.

Is there a force majeure clause?
The contract may contain a force majeure clause which can be relied on if it provides for a foreseeable event such as a pandemic occurring.  In the context of the coronavirus COVID-19 lockdown, the enactment of the Coronavirus Act 2020 imposed restrictions on businesses opening, travelling, gatherings at public events, and regulations to stay at home and self-isolate if showing viral symptoms or if in close contact to someone with the virus; thereby creating the force majeure event of a change in the law.

What if there is no force majeure clause?
In the absence of a force majeure clause or one which is silent on the specific mention of a pandemic; the doctrine of frustration will operate to discharge the contract, automatically relieving both parties from the performance of their contractual obligations.

What happens if an advance or expenses have already been paid?
Advance payments made prior to the frustratory event are recoverable and any prior part performance and or expenses incurred can be claimed if a valuable benefit was conferred.[i]

What should you do if you think your contract has been frustrated?
Any decision to assert frustration in order to discharge a contract should only be made after first taking legal advice as each case is dependent on the relevant facts of whether or not a contract is frustrated.


[i] Law Reform (Frustrated Contracts) Act 1943 s1(2).

Disclaimer. The above is a blog commentary and should not be relied on as legal advice.  The advice of a solicitor should always be sought in all circumstances.

Copyright in the Transition Period and afterwards.

Now the European Union (Withdrawal Agreement) Act 2020 is on the statute book, the UKIPO has published a useful guide on the transition period between 31 January and 31 December 2020. ‘During this time, EU law will continue to operate as it does now in the UK … and will continue as it is until 31 December 2020.  The guidance on Copyright states that ‘[c]ontinued reciprocal protection for copyright works between the UK and the EU is assured by the international treaties on copyright. This is independent of our relationship with the EU so is not addressed in the Withdrawal Agreement. 

After the transition period, the changes to copyright law from 1st January 2021 are contained in the Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019(Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019).  This removes all references to EU & EEA in the Copyright Designs and Patents Act 1988 and replaces them with “UK” and the following will apply:

Qualification for Copyright
Works currently eligible for copyright on the basis of nationality of the UK/EEA or any country party to international copyright treaties will continue to be eligible after the end of the transition period.  
Works first published or transmitted in the UK, EEA or any country that is party to the international copyright treaties will continue to be eligible for copyright protection in the UK.

Copyright Protection
UK copyright works (literary, dramatic, music and artistic) will still be protected in the EU because of the UK’s participation in the international treaties on copyright, and in parallel,  EU copyright works will continue to be protected in the UK.  This applies to works made before and after the end of the transition period.

Copyright Duration
Copyright duration of 70 years after the death of the author in the UK will not change after the end of the transition period. Currently, EEA works are given the same copyright duration in the UK as UK works. For works from outside the EEA, copyright lasts for the term granted in the country-of-origin or the term granted to UK works, whichever is less.

Orphan Works
The exception for cultural heritage institutions e.g. libraries, museums, and archives to digitise and  make orphan works available online across all
EEA member states without the permission of the right holder will no longer apply to UK-based institutions and will be repealed from UK law after the end of the transition period. (Schedule ZA1 CDPA 1988 is omitted in its entirety).  Consequently, UK institutions may face claims of copyright infringement if they make orphan works available online in the UK or EEA, including works they had placed online before the end of the transition period.  (The guidance advises on what steps to be taken).

Artist’s Resale Right
In accordance with the Berne Convention, nationals of the UK and other countries that provide reciprocal treatment, including EU member states, will continue to receive resale rights in the UK after the end of the transition period.

Collective Management Organisations
In the UK, existing obligations on UK CMOs (e.g. DACS, PICSEL, ACS, etc) will be maintained after the end of the transition period.  EEA CMOs will not be required by the CRM Directive to represent UK right holders or to represent the catalogues of UK CMOs.  However, UK right holders and CMOs will still be able to request representation, but EEA CMOs may be free to refuse those requests depending on the law in individual member states. 





Kim Kardashian is being sued for posting unlicensed photo of herself and husband Kanye West on Instagram

2020 is barely one month old and in the news we learn that Kim Kardashian is being sued by professional photographer Saeed Borden for copyright infringement.  In a complaint filed on Jan 22, 2020 in the Eastern District Court New York, the plaintiff alleges that on June 14, 2018 at an album listening party in Queens New York for rap artist Nas’ album ‘Nasir’ which was produced by Kanye West, he photographed Kim Kardashian and her husband Kanye West; and subsequently licensed the image to news media outlets.  Neither Kardashian nor SKIMS BODY, Inc her company were “licensed or otherwise authorized to reproduce, publicly display, distribute and/or use the photograph.” 

However, in October 2018, the defendant posted the image to her Instagram account without seeking prior permission or authorisation.  By doing so, Kim Kardashian engaged in “willful, intentional, and purposeful [copyright infringement], in disregard of and indifference” to the photographer’s ownership rights (s201 Copyright Act 1976 – USA).  As a result, he is seeking monetary damages, including “the profits, gains or advantages of any kind attributable to the infringement of his photograph.” 

This case echo two suits filed in 2019 by pop musicians Justin Bieber and Ariana Grande for posting images of themselves on social media without authorisation or license from the photographers or their agencies.  Both of those cases were settled out of court with Ariana Grande reportedly paying $50,000 to settle.  It remains to be seen whether Kim Kardashian will cave in and do the same.



Saeed Bolden v. SKIMS BODY, INC. and KIM KARDASHIAN, 2:20-cv-00365 (EDNY)


Digital Single Market Directive 2017/790 will not be implemented

In reply to the question what plans the Government has to bring forward legislative proposals to implement the EU Copyright Directive in UK law; the Secretary of State for Business, Energy and Industrial Strategy responded that ‘the United Kingdom will not be required to implement the Directive and the government has no plans to do so. Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process’.

Recalling a report published in December 2019 into online copyright infringement and the value gap, BAPLA – the British Association of Picture Libraries and Agencies – concluded that in the past 10 years, its members had suffered a significant loss in income through copyright infringement attributed to unauthorised and unlicensed images on social media and whose members wholly endorsed the proposals in Article 17 of the DSM Directive 2017/790.

Article 17 contains provisions, inter alia, for online content-sharing providers to obtain authorisation form rights holders by concluding a licence agreement with strict liability for unauthorised acts by the providers when communicating and making available to the public copyright-protected works.  Also included is a requirement for providers to act expeditiously in taking down and removing infringing works when brought to their attention by rights holders.

The expectation of the report was that implementation of Article 17 would have played a crucial role in restricting the distribution of unauthorised content.



Hotlinking is not copyright infringement – UK High Court

Hotlinking or inline linking is the linking of an image on one website to a web page on another website where the original image is located.  In the case of Wheat v Google LLC, Christopher Wheat a photographer, operated a website “”; a news media site with original articles, photographs, and a directory to other websites. Mr Wheat claims he is the owner of the copyright in both the articles and photographs on the website which was freely accessible to the public.

Mr Wheat brought a claim against Google LLC for copyright infringement on the grounds that when a user searches Google, the resulting list shows headline results with links to hotlinking websites prioritised over his own website and when the user clicks on the headline result, he/she will be directed to a hotlinking website on which his images are displayed as hotlinks to his own website ‘’. He alleges that this results in a loss of traffic to his own website and that Google has engineered or knowingly permitted the results to show the hotlinking sites higher in the results ranking in order to increase revenue from advertising on those sites affecting revenues on his own website.  His main claim, inter alia, is that Google did not have his consent to use his cached content to enable internet users to access said content via hotlinking websites and that the communication was without his licence.

In an earlier judgement given against an application to file out of jurisdiction, it was found that the complaint lay not against Google, but with the hotlinkers themselves.  Hotlinking does not involve an act of copying and therefore no copyright infringement occurs.  The complaint that Google has prioritised one website over another does not give rise to a claim for copyright infringement.  The application was dismissed and on appeal was upheld. The complaint against Google cannot be unlicensed communications because they are not communications to a new public nor communications by a new technical means.

The US Court of Appeal for the Ninth Circuit considered this in a similar complaint against Google and ruled that inline linking does not violate US copyright law. The inline linker does not place a copy of the image on its server, but a code which points to the server where the copyright owner has placed the image file … ‘the Copyright Act…does not protect a copyright holder against [such] acts….’.


Wheat v Google LLC and Monaco Telecom [2018] EWHC 550 (Ch)
Wheat v Google LLC [2020] EWHC 27(Ch)
Perfect 10, Inc v,Inc
487 F.3d 701 (9th Cir. 2007)

Duration of Copyright & the Publication Right

1st January 2020 marks the end of copyright term for artistic works i.e. photographs, of authors who passed away in 1949 i.e. 70 years from the end of the calendar year in which the author dies. Conversely under current legislation, 01 January 2090, will mark the end of copyright for authors who have passed away in 2019.  At which point, the author’s works will be deemed to have passed into the ‘public domain’.

What is the ‘public domain’.  It is not a physical terrain or a cloud store of aggregated works.  It can be defined as: 1) works out of copyright for which no permission is required to use or commercially exploit; 2) works which do not qualify for protection e.g. ideas, facts, folklore, etc; and 3) works permitted for open use under a creative commons or general public licence. The works are free for the public to use and exploit without requiring permission to do so.

However, one lesser known right equivalent to copyright, a ‘publication right’, resides in unpublished works out of copyright.  The publication right is automatically vested in any person or entity who after the expiry of the copyright term, publishes a previously unpublished ‘public domain’ work for the first time i.e. artistic works in which the copyright has lapsed.

The publication right lasts for 25 years from the end of the year in which the work was first published and cannot be extended.  The qualifying criteria is the work must be first published in the EU/EEA and the publisher must be a national/entity of an EU/EEA country.  No account is taken of any unauthorised act or publication before the work enters the public domain.

In the case of an artistic work, ‘publication’ means the issue of copies to the public and also making it available to the public by means of an electronic retrieval system. Hence the act of making available online or communicating to the public a previously unpublished artistic work in which the copyright has lapsed will grant the publisher a ‘publication right’ for a further 25 years from the date of publication.

Directive 2006/116/EC – Article 4
Copyright and the Value of the Public Domain’ – IPO Jan 2015.

BAPLA: Online Copyright Infringement Report

In December 2019, BAPLA – The British Association of Picture Libraries & Agencies, published their report “Research Into Online Copyright Infringement – Assessing The Value Gap”.  The report was undertaken to highlight concern and answer the question “To what extent has copyright infringement online affected BAPLA members, thereby creating a ‘value gap’, and have social media platforms exacerbated the situation?”

BAPLA represents over 130 members in the UK and worldwide, ranging from some of the largest picture libraries to those run by rights holders and sole traders as well as cultural heritage archives and news agencies. The report is based on a cross section of its members and looks at the present market size, the extent and cost of online infringement, and the impact of social media.

The Present Market Size
The response to the survey by 107 members put estimates of market size at 274 million images for the UK and 17 million images for the rest of the world – slightly under 300 million images – with a total turnover of £12M in the UK and £16M from the rest of the wold.  Significantly, 62% of members based in the UK, had a turnover of less than £100,000; with 22% of UK members exceeding £500,000 and above.  The report therefore highlights the ‘value gap’ in the level of income for picture libraries and agencies compared with the level of income generated by online content sharing service providers (OCSSP).

The Extent and Cost of Online Copyright Infringement
75% of respondents stated that online infringement had increased over the last 10 years, whilst 22% stated that it had stayed the same, and 1% stated that it had decreased. The supporting evidence was image tracking technology revealing increased online infringement on social media sites, in particular Facebook and Instagram; the number of infringement notices being sent out; and the general public at large believing that images online are free to use.  73% of respondents also said that they actively pursue infringement by the use of copyright infringement services, court action, take down notices and commercial settlement.  However, these methods were fairly ineffective when dealing with infringements outside of Europe and the USA e.g. Russia and China; and loss of revenue reported overall by respondents was an average of 25% of licensing income; further emphasising the ‘value gap’.

The Impact of Social Media
There was a recognition among members that licensing conditions had changed to permit use of images on social media; 54% for and 46% against; concluding that use on social media for commercial purposes had an enormous impact on the image sector. In response to the question which social media platform most infringed content, the results confirmed that Pinterest had the largest number of infringing images (50%) with Tumblr the least (60%); and the majority of members finding that reporting infringements on social media, ‘highly difficult’.

When asked if they were aware of recently passed (April 2019) Article 17 of the Digital Single Market Directive and that if adopted into UK law, OCSSPs will require a licence from rights holders to display copyright protected images to the public; the response was 68% knew about Article 17 and 100% fully endorsed it becoming law.

The report concluded that ‘[w]hile the internet has opened up many online opportunities … it equally impedes controlling the illegal use of images that would otherwise be licensed’; and conclusively provides evidence that a ‘value gap’ does exist on a large scale for BAPLA members.




2019 Highlights

Mar 2019: Ariana Grande strikes back at ‘greedy’ photographers with Full Copyright grab agreement for photographers accredited to photographer her on her current concert tour.

May 2019: Singer Ariana Grande sued for posting photos of herself on Instagram

Jul 2019:  The Andy Warhol Foundation for the Visual Arts Inc vs Lynn Goldsmith. The Andy Warhol estate counter-sues after being sued by photographer Lynn Goldsmith over her photograph of the recording artist Prince was used as the source image for a series of silk-screen prints by the late artist Andy Warhol. An interesting result on a derivative work from a photograph.

 Aug 2019: In the USA, photographer Jill Greenberg settles out of court, her claim for copyright infringement against advertising company Clorox for using the licensed images over and above what was originally agreed in the contract for the shoot.

Oct 2019: Justin Bieber Settles a Copyright Infringement Lawsuit Over using a Picture of Himself used on Instagram.

Nov 2019: Celebrated USA Photographer Harold Davis files suit against Pinterest Inc in San Francisco USA alleging that Pinterest wilfully violates his copyright and should not be protected under the Digital Millennium Copyright Act (DMCA) safe harbour provisions.  Pinterest is the website where users can ‘pin’ images copied from other social media websites to their own personal collection of images.

Dec 2019: Hilton Hotel in Instagram Photo Rights Grab