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In this issue of zoom-in brief, Sir Rod Stewart is sued for using a photo of himself; comedian Sacha Baron Cohen and CBS are sued for defamation by Roy Moore, over Moore’s appearance in Baron Cohen’s new show Who is America?; and the EU Parliament moves a step closer to approving a controversial new copyright Directive aimed at bringing copyright law up to date for the internet era.

COPYRIGHT – Sir Rod Stewart sued for using photo of himself

Editorial credit: landmarkmedia / Shutterstock.com
Editorial credit: landmarkmedia / Shutterstock.com

Sir Rod Stewart

Sir Rod Stewart is facing a copyright claim by a photographer who says Stewart used her image, of the singer and an ex-girlfriend, without her permission.

Julia McLellan has issued a claim for £9,999.99 (which is the small claims limit) against the singer at Chelmsford County Court over Stewart’s use of the picture as a backdrop at one of his gigs.

Ms McLellan claims to have repeatedly sought a fee for use of the image in 2015, but was refused, and brought the claim after attempts at settlement failed.

The photograph in question was used on a video backdrop at BBC2’s Live in Hyde Park: A Festival in a Day concert.

It was taken by Sir Rod’s school friend, Christopher Southwood, from whom Ms McLellan claims to have acquired the copyright in 2004.

She says that although Mr Southwood gave Sir Rod a copy of the photograph as a keepsake, that did not permit him to make commercial use of it.

In his Defence to the claim, Sir Rod’s team said it should be rejected for “an absurd level of damages for a totally innocent, brief and incidental use by Sir Rod of a personal snapshot as part of another, more substantial, artistic work”.

The Judge encouraged the parties to mediate, saying that the claim “has got tears written all over it”.

This is the latest in a series of claims brought against celebrities who have used images in which they feature, but where they are not the copyright owner.

Queen guitarist Brian May was briefly banned from Instagram last year after a photographer reported him to the photo sharing service for posting an image of him at a concert without permission or credit.

Similarly, model Gigi Hadid faced a copyright infringement claim after she posted an uncredited paparazzo picture of herself on Instagram, which the photographer had licensed to the media, but not given her permission to use.

The legal complaints underline the importance of distinguishing between the subject of a photograph, or the person who has published it on social media, and the copyright owner from whom permission must be obtained for its use.  Content producers should not assume that material posted on personal pages within social media sites by celebrities and others is that person’s copyright.

(US) Libel – Sacha Baron Cohen and CBS sued by Roy Moore

Comedian Sacha Baron Cohen is being sued for defamation by failed US Senate candidate Roy Moore, over Moore’s appearance in Baron Cohen’s new show Who is America?

The claim, which was filed in the District of Columbia, is also brought against CBS Corporation and its subsidiary Showtime, which were behind the show, and is for a huge $95 million in punitive and compensatory damages.

It says that Moore “suffered extreme emotional distress” as a result of “being falsely portrayed as a sex offender and paedophile” on the show.

When Moore became a Republican candidate for the Senate in Alabama in 2017, multiple women alleged that he had made unwanted advances or sexual assaults on them when he was in his thirties and they were in their teens, with the youngest being 14.  Moore denies the claims.

Moore, who is one of several US politicians to have been duped by Baron Cohen, believed that he was receiving an award for supporting Israel when he agreed to be interviewed on Who is America?

Baron Cohen appeared with Moore in the show in his persona “Colonel Erran Morad” and referred to military technology, including a device which he claimed could detect paedophiles.

It repeatedly beeped as it approached Moore, who did not react.

In a statement, Moore’s attorney Larry Klayman attacked Baron Cohen as being “not only low class but also a fraudster” and referred to the “great emotional and other damage” done to his client.

Defamation claimants in the United States generally face a more difficult task than those in England and Wales.

Where the claimant is a “public figure”, they cannot succeed unless they can show that the publisher acted with actual malice, in the sense that they knew the allegations were false, or recklessly disregarded the truth.

The First Amendment also provides powerful protection for speech, and the United States’ Supreme Court has held that public figures cannot recover damages for distress, where it was caused by a caricature, parody, or satire of the public figure that a reasonable person would not have interpreted as factual.

Whilst Moore’s claim faces some serious obstacles, nevertheless it highlights the potentially high risks involved for those in the business of satire and parody.

COPYRIGHT – The EU Parliament approves position on controversial copyright directive

The European Parliament has, on 12 September, voted in favour of the text of the new European Copyright Directive, which aims to bring  copyright law up to date for the internet era.

The Directive will be put to a final vote in January 2019, at which point it will need to be implemented by individual EU member states in their domestic law, but the Parliament has now made clear its position for going into negotiations with member states for a conclusive deal over its terms.

The new measures have proved highly controversial, and it is likely that they will significantly affect the power dynamic between the internet giants which host content online, and those who create it, such as the newspaper, music, film and television industries, as well as having implications for those industries themselves.

The legislative process has in fact seen the Parliament toughen up the areas of the new law which look to protect content creators.

Article 11 provides for a “link tax” which will compel online platforms to pay news organisations for the use of their content, and Article 13 provides that the onus will be on web giants to ensure that agreements with rights holders for the use of their work are working.

The Directive also significantly strengthens the position of authors and performers, providing for greater transparency relating to exploitation, revenues and remuneration, and also for a contract adjustment mechanism which would apply when remuneration under the original agreement is low compared to subsequent revenues.

Internet companies have lobbied furiously against the changes.

The internet giants’ objections focus on the cost of these measures, which will undoubtedly have an impact on their bottom line. Their spokesperson said: “It is a very big cost to take on board, and it is not a one-off – it is something that needs to be maintained.”

The EU’s perspective, however, is that freedom of expression will be protected by the wording of the new measures, and that the net result will be highly positive for creators and journalists providing new opportunities to earn revenue from their work.

The new law, particularly relating to transparency and contract adjustment, may introduce greater complexity into the commercial relationships between production companies and the creative individuals with whom they work.  However, the prospect of at least part of the vast revenues which internet companies generate from making others’ content available now being diverted back to those who made the content in the first place is likely to benefit the media and creative industries as a whole.

A key element of uncertainty is whether the United Kingdom will still be in the EU when the Directive finally becomes law and if not what arrangements will be in place with regard to IP rights.

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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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