Saturday, 27 February 2021

The Mail On Sunday v Meghan Markle

There comes a time in the life of a writer, unless you are JK Rowling of course, when you have to accept that the book you’ve been working on for a really long time and which you were counting on for both personal and financial gain, might not actually get published.

It’s a really unpleasant moment and it happened to me a few weeks ago while I was still basking in the euphoria of having finally finished writing My Dear Elsie, the non-fiction book I’ve been writing on and off since 2012.

The book is based on a collection of old letters and postcards I found in the back of my late mother’s wardrobe and they are not just any old letters and postcards. They were written to my maternal grandmother by a friend of hers called Ethel North who was employed as lady’s maid to Lady Winifred Burghclere, the sister of the 5th Earl of Carnarvon, from 1919 to 1933.

George Herbert, 5th Earl of Carnarvon (Public Domain)

Ethel travelled all over the world with Lady Burghclere, including to Egypt where they were shown around the tomb of Tutankhamun by Howard Carter who, along with the 5th Earl, had discovered the tomb of the boy Pharaoh in 1922.  

The letters are full of fascinating stories about life as a domestic servant, foreign travel in the heyday of the steamship and gossip about “celebrities” of the period such as King Edward VIII and Sir Winston Churchill. You can find out more about them here:

As soon as I discovered Ethel’s letters and started reading them, I knew I had discovered something really special. My intention was to get them published in book form as I felt strongly that I wanted to share Ethel’s fascinating story with the rest of the world and this seemed to be the best way of doing it.

Unfortunately, I was already several years into the project when I found out that the law on copyright infringement applies to old, unpublished letters in exactly the same way as it does to other “creative” work such as art, literature or music. In other words, although I own the actual physical letters and postcards, I don’t own the copyright or “intellectual property” on them. That still belongs to Ethel, the original writer of the letters and as she has only been dead since 1960, she retains the copyright, or at least her estate does, until 70 years after her death. That means they won’t be in “the public domain” until after 2030.

Ethel in Egypt

However, there are some exceptions to this law and until very recently, I was under the assumption that I was covered by one of these exceptions. This is something referred to as “criticism, review and new reporting” and allows for relevant sections of copyrighted works to be reprinted for comment.

Unfortunately, the key word here is “reprinted” as I have now discovered that the exemption does not apply to unpublished works (such as personal letters) and is also not intended to cover use of a whole work, only extracts, and I am using at least 90 per cent of Ethel’s letters in my book.

Ironically, it was the reporter who wrote a feature on Ethel’s letters for The Mail on Sunday newspaper who convinced me that I was covered by this exemption. The paper recently lost a high court privacy case concerning publication in the paper of extracts of a “personal and private” unpublished letter that the Duchess of Sussex, Meghan Markle, had written to her estranged father.

Although the judge’s decision was mainly concerned with the alleged breach of privacy, he also ruled that the paper had infringed Meghan’s copyright having “copied a large and important proportion of the work’s original literary content”. In other words, he did not accept that the publication of the letter was covered by the “criticism, review and new reporting” exemption.

One of Ethel's letters to my grandmother

Of course, I am well aware that publishing Ethel’s letters is a very different proposition from publishing a personal letter from a prominent member of the Royal Family. Nevertheless, I’ve decided I can’t go ahead with publishing the book until I have done all I can to obtain permission from the copyright holders.

I am already in contact with one of them and they have kindly agreed to try and get in touch with the others (there are about half a dozen altogether as far as I can work out) and in the meantime, I can only sit back and wait. The book is finished, the illustrations are more or less resourced and I am ready to go. But will I end up actually being able to publish it? Only time will tell.