8 April 2024
Netflix Tiger King copyright lawsuit continues
As previously reported in zoom-in, cameraman Timothy Sepi sued Netflix and the production company, Royal Goode Productions, over their use of eight videos in the hit series Tiger King. Seven of the videos were filmed by him whilst working as a cameraman in the Garold Wayne Exotic Animal Memorial Park Zoo owned by Joe Exotic (Joseph Maldonado-Passage), while the eighth depicted the funeral of Exotic’s husband.
In 2023, an Oklahoma judge dismissed Sepi’s claim in full, on the basis that the Zoo videos were filmed during the course of, and within the scope of, his employment as a cameraman at the park, such that he did not own the copyright in them. They were owned by the employers. The claim in respect of the funeral footage was dismissed on the basis that it constituted ‘fair use’ by Netflix and was ‘transformative’.
However, last week, the 10th Circuit of the Court of Appeal overturned the Judge’s decision in respect of the eighth video. Following the US Supreme Court’s decision in Warhol v Goldsmith (see below), it held that the lower court judge was wrong to find that the use was ‘transformative’, as it did not ‘comment’ on the original funeral video, but rather it focused on a character within it. Further, the Court of Appeal found that the judge had erred in determining that the use by Netflix would not harm the market for the original funeral video. Therefore, the question of fair use in respect of the funeral video should have been left for trial.
This is the latest in a string of claims in the USA to turn on the question of ‘transformative’ use. The Andy Warhol Foundation recently settled a case brought by photographer Lynn Goldsmith, who claimed that Warhol violated her copyright in 1984 by creating a series of silk screens using a photo she had taken of the singer, Prince. The Supreme Court, in a 7-2 ruling, refused Warhol’s argument that he had made a transformative fair use of the works and clarified that transformative use alone is not enough to ground a fair use finding - it is merely one consideration of many, which should also include elements like commercialism. zoom-in also reported on that claim, here.
Inventing Anna defamation suit to proceed to trial
A judge in Delaware has ruled that Rachel Williams can proceed with her libel claim against Netflix over her portrayal in the hit show Inventing Anna.
The Netflix show dramatises the misadventures of Anna Sorokin, who posed as a German heiress called Anna Delvey, and was convicted of defrauding nearly $200,000 from banks, restaurants and hotels. Williams is portrayed in the show as a friend of Delvey, including accompanying her on a luxury trip to Morocco, where the hotel bill is charged to Williams’s credit card. Williams went on to write a Vanity Fair article and book about Sorokin, and testified against her at the trial.
In 2022, Williams brought defamation proceedings against Netflix, arguing that the dramatisation falsely portrayed events and depicted her as “…greedy, snobbish, disloyal, dishonest, cowardly, manipulative and opportunistic…”.
Williams is seeking punitive damages, arguing that the decision to use her real name evidenced Netflix’s intent to harm her reputation. Williams acknowledged the disclaimer used on the Netflix show (“this (whole) story is completely true, expect for all the parts that are total bullshit/is totally made up”), but argued that this message was “confusing” and did nothing to protect her.
Netflix filed a motion to dismiss Williams’s claim, arguing that the statements were opinions protected by the First Amendment. They argued that “…to allow constitutionally-protected artistic expression to flourish, content creators like Netflix must be allowed some breathing space to interpret the actions and decisions of those involved in public controversy.”
The judge found that at least part of Williams’s claim was actionable, as she had plausibly argued that two statements in the series were false statements of fact (not opinion) and defamatory. Those statements included the allegation that Williams “abandon[ed]” Anna in Morocco when she was “alone, depressed and in trouble”. As a result, the claim was free to proceed.
In the US, a defamation lawsuit can only be brought against statements of fact and not expressions of opinion, which are constitutionally protected provided that the facts supporting the opinion are set out.
The position is different in the UK, where claimants can successfully sue for defamation over statements of opinion i.e. unless a defendant is able to establish a defence of ‘honest opinion’ pursuant to s3 of the Defamation Act 2013. Accordingly, whilst trials of preliminary issue in the UK often consider whether a statement is a fact or opinion, this is not a basis on which a court could dismiss a defamation claim before trial.
Andrew Bridgen MP ordered to pay costs of Matt Hancock MP in first stage of defamation battle
Andrew Bridgen, the MP for North West Leicestershire, has been ordered to pay Matt Hancock’s costs of a strike out hearing in the High Court.
Bridgen sued the former Secretary of State for Health and Social Care over a 2023 tweet by Hancock that said: "The disgusting and dangerous anti-semitic, anti-vax, anti-scientific conspiracy theories spouted by a sitting MP this morning are unacceptable and have absolutely no place in our society". That morning, Bridgen had tweeted a link to an article about deaths and other adverse reactions to COVID vaccines, and stated: “As one consultant cardiologist said to me this is the biggest crime against humanity since the Holocaust”.
Bridgen brought defamation proceedings against Hancock, who applied to strike out the claim – arguing that Bridgen had not set out a viable case on reference in his claim. Hancock submitted that no reasonable reader would have assumed, without knowledge of other facts, that the MP referred to was the claimant.
The judge, Steyn J, agreed with Hancock but she declined to strike out the claim, as it was capable of being cured by amendment.
Bridgen has now been ordered to pay Hancock £44,300 in costs, which the BBC reports amounts to 90% of Hancock’s costs.
Hancock wrote on X that he was “glad” about the costs ruling, but that “Mr Bridgen should stop wasting the court’s time and drop this case now”.
Metropolitan Police apologises to journalists detained at a Black Lives Matter protest nearly 10 years ago
The Metropolitan Police has apologised and reached an out of court settlement with three journalists who were detained with protesters at a Black Lives Matter solidarity event in London in December 2014. Following production of their press cards, the journalists were told to leave the area, preventing them from reporting on the subsequent arrests of 76 protesters.
The Metropolitan Police accepted this should not have happened and that guidelines had not been properly followed. It also recognised the important role journalists play as public watchdogs and that freedom of expression constitutes one of the essential foundations of a democratic society.
It appears that the delay in resolving the matter was in part due to police footage of events on the day being mislaid.
Journalists have frequently faced detention and even arrest while covering protests. Notably, in November 2022, four journalists were arrested in the space of two days by Hertfordshire police while covering Just Stop Oil protests on the M25. This led to an independent review which concluded that the arrests of the journalists were not justified and that changes in training and command needed to be made.
The College of Policing and National Police Chiefs’ Council’s national protest operational advice recognises that any unnecessary restrictions placed on a journalist undertaking their duties will interfere with their Article 10 rights. However, it may still be necessary to require journalists to comply with lawful and reasonable instructions in order to enable the police to carry out their duties safely and effectively.
The Public Order Act 2023 which has bolstered the police’s powers to respond to disruptive and dangerous protests also includes some safeguards for journalists. It prohibits police from exercising their powers for the ‘sole purpose‘ of preventing someone from observing or reporting on a protest. This means police must have another reason to lawfully exercise their powers against a journalist who is reporting on a protest – for example because they are obstructing a police officer.
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