Love, passion and … IP: When a copyright work goes too far
by Peter Groves
Intellectual property law rarely concerns itself with love and passion, but one case that has those elements, to excess, is Glyn v Weston Feature Film Company [1916] 1 Ch. 261. As every student of copyright knows, the judge (Younger J, later Lord Blanesburgh, never one of our most distinguished judges) denied Elinor Glyn's novel Three Weeks the protection of copyright law because it was "grossly immoral". In fact, he held that the defendants' parodic film was so different from the book that it did not infringe, going on to say that alternatively it would have been permitted as a burlesque. Only then did he make his comments about immorality, which should therefore be seen as obiter - and unsupported by authority.
Three Weeks seems to modern eyes an unremarkable book. When it was published in 1907, however, it was eagerly-anticipated, and the author herself helped hype it, with the publishers pulling it, the author writing that friends had told her it was too racy, then unnamed “persons in the highest position” giving her the green light. Eventually, it was the only book to sell more than 100,000 copies in 1907 and went on to sell millions more. Its author became a global brand, and enjoyed great success as a Hollywood scriptwriter as well as continuing to write novels. Surely it deserves more than a footnote in the IP textbooks, and so does Mrs Glyn.
[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]
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