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In this issue of zoom-in brief, feud over Feud continues as Olivia de Havilland vows to take her fight to the US Supreme Court; an Oxford Mail journalist is successful in challenging a reporting restriction over naming a teenager who tried to hide evidence at a murder scene; and Stelios, founder of easyJet, threatens to sue Netflix for trademark infringement claiming their comedy series ‘Easy’ breaches their EU trademarks.

(US) Defamation – de Havilland takes docudrama battle to Supreme Court

Editorial credit: DFree / Shutterstock.com
Editorial credit: DFree / Shutterstock.com

Catherine Zeta-Jones

Dame Olivia de Havilland is to attempt to appeal to the US Supreme Court in her claim against channel FX and Ryan Murphy Productions over the depiction of her character, played by Catherine Zeta-Jones (above), in the hit docudrama Feud: Bette And Joan, also starring Jessica Lange as Joan Crawford, and Susan Sarandon as Bette Davis.

Lawyers acting for the 102 year old grande dame of Hollywood have filed a petition with the Court, asking it to re-examine the California Court of Appeal’s previous decision to dismiss her claims.

“The Court of Appeal’s decision is a radical departure from traditional First Amendment precedent, and benefits no group other than those who seek to use the names and identities of others in untrue and salacious ‘historical dramas’ for their own profit,” said de Havilland’s attorney.

The further appeal, which will be the end of the line for her claim if it is not granted permission by the Court, follows a decision in July by the Californian Supreme Court to deny de Havilland’s petition to that body over an earlier decision dismissing her case.

As reported previously in zoom-in, the Oscar-winning actor and star of Gone With the Wind had brought a claim seeking damages as well as an injunction to stop the show being broadcast.

She claimed that her name and likeness were used to promote the series without her permission, and that it damaged her reputation by portraying her as a gossip and a hypocrite.

De Havilland particularly objected to parts of the show which showed her making jokes about Frank Sinatra’s drinking, and calling her sister and rival, Joan Fontaine, a “bitch.”

In August 2017, a judge turned down FX’s attempt to have the case thrown out under California’s anti-SLAPP rules (which protect defendants from so-called ‘Strategic Lawsuits Against Public Participation’ aimed to prevent free speech) and decided it should proceed because there was a chance that de Havilland could win the claim.

FX appeared in the California Court of Appeals to try and get the ruling overturned and the appeal court reversed the judge’s decision less than a week later.

The appeal court referred to the First Amendment protection accorded to those in the creative industries who ‘take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transform them into art, be it articles, books, movies, or plays.’

Underlining the decision’s relevance to the docudrama model, the Court said that whether a person in an expressive work is a world-renowned film star or someone that no-one knows, she does not have ‘the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people’.

The California Supreme Court then turned down a request to have that decision reconsidered, leaving the highest court in the United States, the United States Supreme Court, as the only route for de Havilland to have her claim proceed to trial.

Feud creator Ryan Murphy previously called the reversal on appeal ‘a victory for the creative community, and the First Amendment…’ He went on to say that the dismissal ‘gives all creators the breathing room necessary to continue to tell important historical stories inspired by true events.’

De Havilland’s claim, and the prospect of an intervention by the Supreme Court, poses a threat to shows that walk the line between fact and fiction, but the case faces a formidable obstacle in the form of the protection afforded to speech by the First Amendment.

Reporting Restrictions: Murder scene teen can be named

A teenager who went to a murder scene to hide evidence can be named after an Oxford Mail journalist challenged a reporting restriction.

17-year-old Alfie Simms was convicted, together with a 26-year-old man of conspiring to pervert the course of justice. They went to the scene just minutes after the attack which killed 27-year-old Chris Lemonius, seeking to hide weapons and other evidence. Four other men were convicted of Mr Lemonius’ murder, and a fifth man was convicted of manslaughter, after the attack which was carried out with golf clubs and machetes.

A reporting restriction under section 45 of the Youth Justice and Criminal Evidence Act 1999 had been made, but Oxford Mail journalist William Walker challenged it after Simms was convicted. The judge was persuaded to lift the order, so Simms can now be named.

The case had attracted huge interest locally, and the order would have lapsed automatically on Simms eighteenth birthday in December in any event. Lifting the order the judge cited the public interest in reporting of the case, particularly given the fact that Simms would turn eighteen only two months later.

This case is one of a number which show journalists can and should challenge reporting restrictions if they feel there is a public interest in reporting names or other details which are restricted by the order. In criminal cases such as this one, even if an order has been granted during trial to protect a young person, a judge may be persuaded to lift an order if the defendant is convicted of a serious offence, given the public interest in knowing who the offender is once the case has been proven. Journalists should also always remember that orders under section 45 of the Youth Justice and Criminal Evidence Act 1999 lapse automatically when the young person reaches eighteen. As in this case, if that is not far off, this may also be a persuasive factor for a judge.

IP Rights: Netflix facing claim over ‘Easy’

The founder of easyJet, Sir Stelios Haji-Ioannou is reportedly suing Netflix over comedy series ‘Easy’. He claims the streaming of the series in the EU breaches the trademarks held by easyGroup. The group has over 1,000 trademarks including “easy” and a series of trademarks with “easy” as the prefix.

The show, which has recently commissioned a third series, has a star-studded cast including Orlando Bloom, Zazie Beetz, Emily Ratajkowski and Dave Franco.

In order to succeed in the claim, easyGroup  would need to show that using ‘Easy’ as the title of Netflix’s television show amounted to trade mark use, in other words that it was being used to denote trade origin of the series rather than simply as a title.  It would also need to show that use of the word Easy by Netflix caused confusion with easyGroup’s registered trademarks, and/or took unfair advantage i.e. was riding on the coat-tails of Easygroup’s marks’ reputation.  Similarly, any claim for passing off would need to show misrepresentation, that consumers would (wrongly) assume that the series was endorsed or licensed by easyGroup and caused loss.

A court would look at whether any of easyGroup’s trademarks are in the field of television or broadcasting. Whilst easyJet is the most well-known of easyGroup’s brands, others include easyHotel, easyGym, easyPizza and easyProperty. Whilst it might be argued that most consumers may well think of other areas when they think of easyGroup brands, with over 1,000 trademarks, the group clearly covers a range of goods and services. The group will also need to be using those marks – if the marks are over five years old but have not been used for those particular services within the last five years the group could be challenged and at risk of losing the protection of the registered marks in that field.

Sir Stelios said: ‘“We own the European trademark for the word ‘easy’ and another one thousand trademarks with easy as a prefix and we can’t allow people to use it now as a brand name.’

Netflix responded: ‘We’re looking into it but think viewers can tell the difference between a show they watch and a plane they fly.’

The claim will be watched very closely by television, film and other content producers, as well as rights holders.  zoom-in will report on any further developments.

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Abbas Media Law is a niche law firm, specialising in advice to independent production companies and broadcasters. We are true experts in our field: all lawyers and advisors have in the past worked either in-house for broadcasters and/or production companies. Accordingly, we fully understand production and the needs of our clients. We offer expert advice and representation on all programme content related matters (legal and regulatory), all aspects of business affairs, as well as complaints-handling and litigation. Visit www.abbasmedialaw.com or contact us directly at info@abbasmedialaw.com.

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