Icelandic performance artist Odee Friðriksson’s work, We’re Sorry—an attempt to tackle corporate wrongdoing—has floundered in the High Court.  Seeking to confront Icelandic fishing powerhouse Samherji, Odee registered the domain name samherji.co.uk and created a website replicating that of the company, incorporating its name (SAMHERJI) and logo (below).

The homepage prominently displayed the statement “WE’RE SORRY”, accompanied by a fake press statement appearing to be from Samherji. The fake statement apologised for the company’s alleged involvement in the ‘Fishrot scandal’—an ongoing controversy revolving around claims that Samherji funnelled millions of dollars through tax havens to bribe Namibian officials in exchange for lucrative fishing rights. According to critics, their actions resulted in devastating job losses and damage to the Namibian economy. An investigation is ongoing, though Samherji has denied all allegations.

To make the website appear authentic, Odee included Samherji’s business details, contact and product information, and one of its brochures. He also distributed press releases to several major media outlets, including the BBC, the Guardian, the Independent, and the Daily Mail. One outlet, Fishing Daily, took the bait and mistakenly reported the apology as genuine.

Samherji reacted quickly, contacting Odee just five days after the website went live, demanding that he cease using their trade marks and take down the website. Odee refused, but issued a further press release revealing himself as the true owner of the website and distributor of the fake statement. Odee was quoted describing his artwork as an apology to Namibia on behalf of the Icelandic people.

Within two days, Samherji applied to the courts for interim relief (a temporary court order intended to preserve the parties’ positions whilst a dispute is resolved), which was granted. Odee was ordered to transfer the domain name to Samherji, remove the website, cease using Samherji’s marks, and ensure that the website and domain name remained non-operational until the Court’s final order.

Shortly after, Samherji filed a formal claim, alleging passing off, copyright infringement, and malicious falsehood, among other grounds. The company also sought summary judgement (i.e. a final decision without full trial), arguing that Odee had no real prospect of successfully defending their claims.

In response, Odee argued that his right to freedom of expression under the Human Rights Act outweighed Samherji’s intellectual property rights. He also claimed that Samherji was not the rightful owner of the copyrighted work and that, in any event, his use of their copyright was protected under the fair dealing defence, which typically applies to the use of another’s work for the purposes of criticism or review, quotation, parody, or pastiche. Additionally, he disputed that the legal requirements for passing off had been met.

The view of the Court

Freedom of expression

Whilst the Court acknowledged that political expression—especially on matters of public interest—requires a high degree of protection, it found that Odee’s actions were neither proportional nor devoid of commercial intent. The Court held that his work went beyond merely conveying a societal message, instead swimming into the waters of deception, impersonation, and misinformation. He was therefore deemed to have exceeded acceptable limits, such that his right to freedom of expression offered no protection.

Passing off

The Court recognised that Samherji had, via its UK subsidiary company, made significant sales of seafood products in the UK, such that it had acquired goodwill in its marks and business.  Although Odee argued that his work was a specific form of political activism known as “culture jamming” (involving the subversion of corporate rhetoric or imagery to criticise consumerism), it was considered that in order for his artwork to be effective, an element of deception was requisite. Indeed, his website and press release were designed to look almost identical to Samherji’s, resulting in the loss of control of their goodwill in the UK. As a result, the Court considered it reasonable to infer that damage to the company’s goodwill was likely to have occurred, also noting that Samherji suffered damage insofar as they were forced to act to correct Odee’s misrepresentations.

Copyright

Odee disputed Samherji’s ownership of the copyright in its logo and brochure. This defence was swiftly gutted, with Samherji providing evidence that the copyright in each work had been duly assigned by the initial creators.

Odee’s fair dealing defence was also given short shrift. The Court found that his use of the logo and brochure was intended to lend credibility, rather than serve the purposes of criticism, review, or quotation.  Splashing further cold water on Odee’s defence, the Court noted that criticism must relate to ‘another work or performance of a work’, with Samherji’s alleged involvement in the Fishrot scandal falling outside this definition.  Parody and pastiche also sunk under scrutiny, as Odee’s use was considered to neither evoke nor imitate the earlier work whilst being noticeably different.

Ultimately, by reproducing Samherji’s logo and brochure, with the intent and effect of impersonating Samherji, Odee’s actions were deemed to fall well outside the fair dealing defence.  Notably, the Court also seemed to consider the possibility that, even if Odee’s actions were viewed as a work of performance art, the severity of the subject matter and statements might have pushed him adrift of this defence.

Malicious falsehood

Samherji also succeeded in its claim for malicious falsehood, with the Court agreeing that the domain name and the website were set up with intent to deceive and cause financial harm to Samherji.

Decision

The Court concluded that Odee had no real prospect of defending Samherji’s claims for passing off, copyright infringement, and malicious falsehood, noting that it was inclined to issue an order closely mirroring that of the interim injunction.  Samherji did not seek a summary judgement for trade mark infringement.  Given the early stage at which injunctive relief was granted, the Court suggested that the burden of a cost inquiry could be avoided if Samherji agreed to the acceptance of a small sum in damages.

Thoughts from Dehns

Putting apparently noble intentions aside, Odee’s actions clearly crossed into unacceptable territory.  Whilst the courts may accept the use of another party’s intellectual property in certain circumstances, it is crucial to tread carefully and, ideally, seek expert legal advice before doing so.  Odee’s approach was the opposite, as his use of identical marks and copyrighted work left minimal room for interpretation, whether artistic or legal. He must have considered that his work was likely to deceive at least some viewers, which is exactly what happened.  It was always open to Odee to criticise Samherji publicly, which he did through a mural at the Reykjavík Museum of Art. This mural also included an apology, the key difference being that, whilst still seeking to draw attention to Samherji’s actions, his artwork did not cross into deception.

In this case, Samherji demonstrated a robust and effective approach to defending their intellectual property. They acted swiftly, and were able to provide evidence that the relevant copyright was owned by them (a potential landmine, as unless and until legally assigned, copyright is typically owned by the original creator, rather than commissioner, of the work). They also made effective use of the various causes of action available to them, including under the flexible law of passing off, ensuring they had multiple fall-back positions and putting them in a strong position to secure a successful outcome. As a result, they achieved a quick resolution without the time and expense of a full trial.  Their proactive response likely limited damage to their reputation, also serving as a warning to others that they will not tolerate unlawful use of their intellectual property.

Despite the decision of the courts, given that Odee’s stated intention is to draw attention to Samherji’s alleged conduct and highlight the lack of accountability for corporate harms, he may still be satisfied with his catch.

Odee has confirmed to Dehns that an appeal has been filed.