A recent case in which the athlete David Bedford accused the telephone enquiry firm 118 118 of caricaturing his image has highlighted a complex area of law, writes Mark Smulian

To anyone older than 40, there was something familiar about the runner featured in the advertisements for the 118 118 telephone enquiry service.

It looked like someone remembered from the early 1970s.

Rodney Bewes? The bloke who played bass in Deep Purple? Perhaps the athlete David Bedford?

Mr Bedford thought the image used was sufficiently similar to him that he complained to the regulator, Ofcom, that his image had been caricatured without permission.

Mr Bedford's complaint was upheld by Ofcom.

The defence from telephone enquiry firm The Number was that the figure represented a generic early 1970s athlete, not Mr Bedford as such.

However, Ofcom 'readily concluded that although the advertisements do not portray David Bedford or refer to him, they do indeed include a caricature of him, and not merely a generic representation of runners from the 1970s'.

But while The Number was found to be in breach of the advertising standards code, Ofcom found there was no evidence that David Bedford had suffered any financial harm.

It decided it would therefore be disproportionately damaging to The Number to direct that the advertisements are not shown in the future.

If only Mr Bedford had made a logo from his long droopy-moustached image, he might have been able to claim breach of copyright in court.

Copyright was a complex area of law even before the invention of Web sites and e-mail, and mobile phones with imaging capabilities made it possible for almost anyone to misuse copyright material if they chose to.

It is based on legislation passed in 1911, 1956 and 1988, and a European directive, but the pace of technological development means the law and its practitioners have to be fast on their feet to keep up with those who misuse material through innovative media.

Closer to home for lawyers, the Law Society has warned solicitors who put counsel's opinions on their intranets to be careful about copyright law (see [2004] Gazette, 8 January, 7).

They have been advised to seek permission from clients and barristers before storing counsel's opinions where they can be accessed by anyone in a firm.

John Maycock, a partner at City firm Withers, is still studying the implications of the guidance, but sees it as an example of the growth of issues related to intellectual property and new technologies.

This has developed as other work for solicitors has declined.

'The whole area is in some ferment because more traditional activities like patent and trade marks have been significantly affected by [patent agents] gaining right of audience, and the amount of work is less,' he says.

'Larger firms represent large clients and the agencies represent the rest, so litigation is down.

But we are getting an expansion into the IT side of things.'

There has been a particular increase in cases involving the use of personalities in general and sports stars in particular.

'They are not necessarily launching copyright cases, but because we don't have image protection in English law, things have to come under another route, such as false endorsement, as in the David Bedford case.'

Mr Bedford would have to consider an action similar to that successfully brought by racing driver Eddie Irvine against Talksport, when he showed that the radio station had falsely suggested he endorsed it in an advertisement.

Image rights cases are in a rather fluid position, as Mr Maycock says: 'Because we don't have the right to images, we are groping towards it by fitting it to other headings.'

Rebecca Lever, an assistant solicitor at London firm Harbottle & Lewis, which represented The Number in the 'runners' case, says: 'In general, it is a grey area, and all intellectual property work is growing in particular on the privacy side of things because there is no privacy law.

'False endorsement and passing off is a growing area because we have no image rights in this country.'

Hamish Porter, a partner at national firm Addleshaw Goddard, says lawyers need to be aware of the potential for copyright infringements - in Web sites, in films, databases, mobile-phone pictures and entertainment software of all kinds, in particular those from 'pirate Web sites developed from obscure places that sell music and pictures over the Net'.

He says this area of law has 'really grown over the past five to ten years.

Copyright holders like the Financial Times, Reuters and the Football League, who own data, are quite concerned about unauthorised disclosure'.

Sports and financial data are two notable growth areas for copyright breaches, he notes.

When investigating a case, he finds he can get a lot of information on who is behind Web sites through looking at the routes of copyright works on the Internet.

'There is usually some way to locate an Internet service provider who is in the jurisdiction and whom you can take action against,' Mr Porter points out, since providers that simply forward disputed material are required to remove it once notified of its nature, even if they did not have control over the content.

Mobile phone service breaches can be tackled in a similar way through notifications to the networks, which once advised must cease to carry infringing data.

Addleshaw Goddard employs one Internet specialist who can find out most of the information its lawyers need, but the sheer volume of Web site monitoring means the firm uses external consultants who trawl sites searching for key words or images.

The most common cases do not involve living personalities but fictional characters.

Addleshaw Goddard acts for both Warner Brothers and Walt Disney, and protects misuse of their characters.

Ian Morris, a consultant to Manchester-based Berg & Co, sees many more cases of traditional copyright infringement than those that involve the Internet, phones or esoteric technologies.

He says the guidance on counsel's opinions illustrates the limits of what the law can do in intellectual property cases of any kind.

'I've not really got to grips with the issue of counsel's opinions but as far as I can see, you cannot stop somebody knowing something,' he adds.

'It does not stop someone with a good memory telling colleagues that they have had a counsel's opinion given some time ago.

I think what they were worried about was large firms behaving as though the opinion was their own, but it is difficult to stop.'

He sees mobile phone photography as a rather peripheral issue of private individuals taking pictures of themselves to e-mail to friends, and says most of the cases he is concerned with are traditional product and design infringement.

'Most clients are more concerned about product infringement and protecting it than about whether a picture has been flogged on the Internet,' he says.

Mr Morris also points out that just because the Internet and mobile phones are new technologies, they do not remove the need for lawyers to apply their traditional skills.

'Copyright owners are really interested in protecting their range of products, but they still want to know who is responsible for an infringement, whether they have got any money and whether is it worth pursuing them,' he says.

'A lawyer still has to advise on the cost/benefit analysis of action rather than go chasing about the Internet.'

The work may be increasing but copyright is a specialised area of law and it can be difficult for young lawyers to break into it, even if they are strongly interested.

Mr Maycock says: 'Some knowledge of IT is helpful but to some extent it depends on whether they are in right place with the right partner, in which case they will slot into it.

They may be the right person but in the wrong place and then would not get sight or sound of copyright law.'

Mr Porter thinks that any solicitor dealing with commercial law needs a working knowledge of copyright issues, 'because it impinges on all aspects of commercial law, from a brochure to use of a logo on a Web site'.

Success in the field needs attention to detail, as the legislation is quite complex, he says.

'It is not the kind of law a broad-brush lawyer can do.

You need to be able to get the cold towel round the head and read through the legislation.

'There are many complicated quirks so that when you apply common sense, you quite often find you are wrong.'

Mark Smulian is a freelance journalist