15 September 2023
US – Legal action over Richard Curtis’ Yesterday trailer is dismissed
A judge has dismissed a novel lawsuit brought by two movie fans over the trailer for romantic comedy Yesterday.
The pair claimed that they rented Yesterday on Amazon Prime after seeing the trailer featuring actress Ana de Armas – whose role was ultimately cut from the film. They commenced proceedings in 2022 for violation of Californian unfair competition law, false advertising and unjust enrichment – arguing that they would not have rented the film if they knew de Armas would not appear.
In December 2022, a judge rejected a motion by Universal to have the case dismissed as a SLAPP, finding that the trailer constituted commercial speech and accordingly the plaintiffs could proceed with their lawsuit without violating the First Amendment. The Court held that it was a reasonable inference that the trailer was “made for the primary purpose of selling tickets, copies and rentals of the movie”. Therefore, while the scenes from the movie would be non-commercial speech when used in the movie, they become commercial speech when used in the context of the trailer.
But last month the same judge dismissed the lawsuit after a series of attempts by the plaintiffs to amend their complaint. Most notably, in April 2023 the plaintiffs added new allegations that one of the plaintiffs had been “deceived again” – this time by Google Play. They argued that because Google search results listed de Armas as a cast member, one of the plaintiffs repurchased the film. The Court agreed with Universal that this was a “self-inflicted injury”, finding that the plaintiff offered no explanation as to why he believed the version of Yesterday on Google Play would be a different version.
The action against Yesterday comes after a woman in Michigan brought a similar claim in 2011 over the Ryan Gosling film Drive – arguing that there was “very little driving”. zoom-in is not aware of any similar claims brought in the UK to date. However, the Advertising Standards Authority has responsibility for ads screened in cinemas, and has published several rulings on issues such as violence, sex, weapons, fear and distress in movie trailers and posters..
Copyright – UK - Guy Goma of BBC News mix-up fame to sue for royalties
Guy Goma became a media sensation when, in 2006, he attended the BBC Studios for a job interview but was mistaken for IT expert Guy Kewney and was interviewed live on BBC News 24 about a legal dispute between Apple Corps and Apple Computers. The cringeworthy interview is still making the rounds on social media 17 years later – racking up over 5m views on YouTube – and even inspired a scene in the film Bridget Jones’ Baby.
Mr Goma, now 54 and considering authoring a book entitled ‘Wrong Guy’, told the Accidental Celebrities podcast that he should receive a share of the royalties from the viral clip.
The BBC has not yet commented on Mr Goma’s intended claim, but is there anything in it?
News broadcasters address contributors’ rights in different ways. Some interviewees might be asked to sign a release form which assigns any copyright over to the channel or production company (but it is probably safe to assume that this form was not signed by Mr Goma in this case given that it would likely have revealed the mix-up). However, due to time constraints, talking heads are often taken to impliedly consent to the assigning of any copyright.
Here, the position is less straightforward – the video of the interview clearly shows Mr Goma looking confused and shocked, so he may not have realised (because he did not know) and therefore could not consent (impliedly or otherwise) to appearing on the live show and therefore to assigning his copyright. There may be an argument that Mr Goma should be treated as a co-author of any copyright in the interview in equity, as it would be unconscionable for the BBC to derive royalties from his contribution if he was misled (either as a misunderstanding on Mr Goma’s part or due to a BBC mistake).
The Copyright Designs and Patents Act 1988 (CDPA) also confers on performers various rights under s.180 CDPA (‘performers’ rights’) as the performer’s consent is required for the exploitation of their performance. Infringement of these rights entitles performers to remedies, including damages or an injunction. The key question would be whether Mr Goma’s interview classes as a qualifying ‘performance’ which, under s.180(2), includes ‘a variety act or any similar presentation given by more than one individual’. If it does, the BBC might have infringed his rights under s.180, for example, by broadcasting the interview live, issuing copies to the public via YouTube or BBC iPlayer, or licensing the clip to others. Mr Goma would also have a moral right to object to derogatory treatment under s.205F if the interview has been broadcast with distortion and prejudices his reputation (which may be evident from the BBC’s YouTube clip which makes light of the mix-up).
Mr Goma may have other rights under data protection law on the basis that he did not consent to the processing of his data, he could also have a cause of action under the right to be forgotten under Art17 UKGDPR. However, the journalism exemption could trump these rights – and Mr Goma’s recent appearance on a popular podcast to discuss the mix-up, or his upcoming book about the same, might have renewed public interest in the story to justify the continued processing of his data contained within the interview.
Of course, any of the above claims are likely to be subject to arguments about limitation, given that the interview was first broadcast in 2006 and any damage would have probably been caused in the immediate period after publication (which would be time-barred) and he complains in the podcast of excessive media attention in the days after the interview.
However, this is a highly unusual situation which the courts are unlikely to have considered before, so a claim by Mr Goma would be one to watch!
(And for those who are wondering - Mr Goma wasn’t offered the job.)
UK Government launches anti-SLAPPs taskforce
On 11 September 2023, Culture Secretary Lucy Frazer KC MP announced the establishment of a taskforce dedicated to tackling SLAPPs (Strategic Lawsuits Against Public Participation). The Taskforce will be made up of various bodies across the legal and media sectors, including the Society of Editors, Reporters without Borders, the Media Lawyers Association, the National Union of Journalists and the Law Society of England and Wales. It will report on a bi-monthly basis to the National Committee for the Safety of Journalists.
Its aim is said to be to protect public interest journalism from SLAPPs, including where linked to non-economic crime. The Coalition Against SLAPPs in Europe (CASE) apparently identified 14 so-called SLAPPs in 2021, up from only two in 2019 and 2020.
The Taskforce will commission research to investigate the prevalence of SLAPPs and explore how legal regulation could work to prevent or mitigate them. It will also develop training for judges and law professionals and draw up guidance for journalists.
This announcement follows the Economic Crime and Corporate Transparency Bill which targets SLAPPs linked to economic crime and seeks to permit judges to throw out cases identified as a SLAPP or cap costs. It also seeks to define a SLAPP at s.194 as (in summary):
A claim which seeks to restrain freedom of speech relating to economic crime, disclosure of which relates to the public interest in combatting economic crime, and the claimant’s behaviour causes the defendant harassment, alarm, distress, expense or ‘any other harm or inconvenience beyond that ordinarily encountered in the course of properly conducted litigation’.
Whether this definition is sufficiently narrow to prevent scope-creep and the stifling of legitimate claims is yet to be seen. However, it is clear that the Government is taking a hard line against claims which appear to stifle the legitimate exercise of freedom of expression.
Copyright – US - OpenAI faces another class-action copyright lawsuit
On 8 September 2023 a group of authors and playwrights filed a federal copyright lawsuit in San Francisco accusing Microsoft-backed company, OpenAI, of misusing their works to train the AI chatbot, ChatGPT, to mimic human conversation. They seek unspecified damages and an injunction for copyright infringement, illegal removal of copyright management information, unfair competition, and unjust enrichment.
The group, which includes Pulitzer Prize-winning author Michael Chabon and Tony Award-winning playwright David Henry Hwang, claim that OpenAI built their works into the datasets used to train ChatGPT to respond to human text prompts in a similar style. The court filing cites various examples where ChatGPT, when prompted, allegedly produced works in the plaintiffs’ respective styles, provided in-depth summaries and identified key themes of their works, sometimes citing specific examples from the original texts.
Neither lawyers for the group nor OpenAI have responded to the claim or to Reuters’ requests for comment. However, this is the third class-action copyright lawsuit against OpenAI, which has argued in other claims that AI training makes “fair use” of the original works (which were available online) by making “transformative uses” of the works – i.e. by adding something new to the original work which has a different character. However, the latest lawsuit claims that some of the works were only available in online ‘illegal shadow libraries’ hosting pirated books, research papers and materials.
Although these class-actions are still very much test cases, they potentially signify a watershed moment in AI. If successful, it is likely that AI companies will face a deluge of similar copyright lawsuits.
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