Key takeaways
Freedom of expression has legal boundaries
Artistic protest must not mislead or impersonate brands.
Parody requires clear distinction
To qualify as parody, work must be noticeably different and not deceptive.
Courts prioritise IP rights in Deceptive Acts
Even non-commercial use can infringe if it misleads the public.
Freedom of expression, or intellectual property infringement?
Court finds against “cultural activist” in case where intellectual property and human rights law clash
In a judgment handed down on 22 July 2025 in Fridriksson -v- Samherji HF [2025] EWHC 1873 (Ch), the High Court has refused a “multidisciplinary artist” permission to appeal against an order granting summary judgment in relation to passing off, copyright infringement and malicious falsehood, with an overarching defence of freedom of expression failing.
The dispute
The Claimant in the dispute was an Icelandic fishing company, Samherji HF. Having been involved in a scandal involving alleged bribery and corruption in Namibia, Samherji HF had issued an apology. The Defendant, ODEE, was an Icelandic art student and “multidisciplinary artist” who felt Samherji HF’s apology was inadequate, and created a fake website containing a lengthier purported apology, which was in a very different form to that issued by Samherji HF.
The website created by ODEE was designed to look like Samherji HF’s official website, featuring its logo and using the domain name samherji.co.uk. The website presented itself as Samherji HF’s official UK website, and one media outlet had reported on the apology as being genuine. ODEE refused to take down the website on request, claiming that this was part of his work as a “cultural activist”.
Samherji HF brought a claim against ODEE for passing off, copyright infringement and malicious falsehood, and applied for summary judgment of the claim. In November 2024, the High Court granted summary judgment in favour of Samherji HF on all three claims.
The appeal
ODEE appealed the decision to grant summary judgment in the claim in favour of Samherji HF. ODEE argued that the case raised issues as to how the Court should balance artists’ freedom of expression and intellectual property rights, and that his actions would fall under the protection of Article 10 of the European Convention on Human Rights (ECHR), which protects the right to freedom of expression.
The appeal was heard by the High Court in June 2025. In the appeal, ODEE described himself as a “multidisciplinary artist working at the nexus of conceptual and performance art”, who said that he sought to provoke debate and activity through the website he registered and that the work was part of ODEE’s BA graduation exhibition. It was argued that art has a fundamental purpose which should not be fettered, and corporations should not be allowed to utilise intellectual property rights to stifle art, nor should the Court lend itself to that exercise.
In the appeal, Sir Anthony Mann, sitting as a High Court judge, dismissed ODEE’s appeal in its entirety, and found that:
The Master had correctly identified that the website was an “instrument of fraud”, intended to deceive, and as such constituted a misrepresentation amounting to passing off. It did not matter that the website had not been set up for the purposes of commercial exploitation.
The use by ODEE of Samherji HF’s logo and brochure amounted to copyright infringement. There was no fair dealing defence for the purpose of parody (as per section 30A of the Copyright Designs and Patents Act 1988) on the basis that a parody must be “noticeably different” from the original work, and there was in fact no element of mockery or humour.
The High Court had correctly reached its findings on malicious falsehood. There was a falsehood, as the website had the deliberate intention to deceive.
The judge considered ODEE’s argument in relation to Article 10 of the ECHR, but noted that this is a right which is qualified under Article 10(2) by providing protection for the rights of others. In such circumstances, a balancing exercise must take place between freedom of expression and the intellectual property rights in question and, on this occasion, the judge found that the balancing exercise went in Samherji HF’s favour and that simply applying labels of satire or performance based protest would not advance the argument.
Comment
This decision comes as an interesting contrast to the 2011 case of Nadia Plesner Joensen -v- Louis Vuitton Malletier SA [2011] E.C.D.R. 14, on which ODEE had relied in the appeal. In Plesner, the Court found in favour of an artist who had used Louis Vuitton’s trademarked bag in an artwork aimed at raising awareness about the humanitarian crisis in Darfur.
However, quite crucially, whereas the Court found in Plesner that the art had not been motivated by any intention to deceive, it was plainly the case in this instance that ODEE had intended to deceive the public into believing that Samherji HF had made statements it had not.
The decision is therefore a helpful reminder of the limits of the scope of any defence of freedom of expression in creating any impersonation or parody work. In such circumstances, the Court will have to carry out a delicate balancing act between freedom of expression and protection of intellectual property. Unfortunately for ODEE, his key downfall was in failing to be clearly parodic in his work.
