10 Jan 10 January 2022
In this issue of zoom-in brief, Netflix is sued over the use of Ace Ventura clips in Tiger King, the BBC has apologised following an interview about Ghislaine Maxwell’s US conviction, Disney fails to have a Pirates of the Caribbean copyright claim thrown out, whilst actor James Franco is called to give evidence in Johnny Depp’s US defamation action against Amber Heard.
The production company behind the Ace Ventura films is suing Netflix over the use of footage of Jim Carrey’s ‘pet detective’ character in the streaming giant’s hugely successful true crime Tiger King docuseries.
Morgan Creek Entertainment allege that Netflix and Tiger King production company, Goode Films, has infringed its copyright by including two clips from 1995’s Ace Ventura 2: When Nature Calls in the first episode of Tiger King(series 1) without permission or licence.
The episode aired in March 2020. Morgan Creek says that Ace Ventura 2 is the only film used in Tiger King in which more than one clip appears, and that the two clips complained of amount to approximately five seconds of screen time.
The first clip features the Ace Ventura character with a monkey wrapped around his neck and shoulder, and the second shows him riding an elephant.
The California-based company is now seeking at least $300,000 in damages, saying that the alleged infringements have caused it ‘substantial economic damage’, and that attempts between the parties to resolve the dispute themselves have failed.
Ace Ventura 2: When Nature Calls grossed over $108 million against a $30 million budget, according to Morgan Creek’s complaint.
Last month, animal rights activist Carole Baskin and her husband – whose rivalry with zoo owner and tiger enthusiast Joe Exotic featured in the first series – dropped a lawsuit against Netflix and Goode Films after a court rejected the couple’s request that the companies be legally barred from using any footage of them or their animal sanctuary in Tiger King’s second season, or any related advertising.
Netflix and Goode Films have yet to comment publicly on Morgan Creek’s lawsuit, although if no licence was obtained for use, it may be that ‘fair use’ is raised as a defence. zoom-in will report on developments.
The BBC has issued an apology following an interview with US lawyer, Alan Dershowitz, in which he was invited to comment on the recent Ghislaine Maxwell verdict. The broadcaster accepted that Dershowitz is not an ‘impartial analyst’ and that the interview did not meet the BBC’s editorial standards.
The interview followed a US jury finding Ghislaine Maxwell guilty on charges including sex trafficking. In the interview, Dershowitz, appearing from New York, expressed that ‘… the most important thing’ was that the ‘Government was very careful who it used as witnesses. It did not use as a witness the woman who accused Prince Andrew, accused me, accused many other people, because the Government didn’t believe that she was telling the truth’.
Unchallenged by the BBC interviewer, Dershowitz went on to say that the Maxwell verdict weakens the case against Prince Andrew ‘considerably’, and congratulated the Government for not calling Guiffre to testify because they did not think that a jury would believe her, expressing that the Government was ‘right in doing so’.
Introduced to viewers as a ‘constitutional lawyer’, the BBC was criticised for failing to make clear his connection with Epstein and Giuffre, and the fact that he himself is locked in a legal dispute with Giuffre – the two are suing each other in the US for defamation – concerning allegations that he abused her, allegations which he denies.
The BBC’s Editorial Guidelines state:
CONTRIBUTORS’ AFFILIATIONS 4.3.12 We should not automatically assume that contributors from other organisations (such as academics, journalists, researchers and representatives of charities and think-tanks) are unbiased. Appropriate information about their affiliations, funding and particular viewpoints should be made available to the audience, when relevant to the context.
In a statement on 30 December, the BBC confirmed that they did not make Dershowitz’s connections to the case clear to the audience, that this did not meet the BBC’s editorial standards, and that they will investigate how this happened.
Walt Disney Pictures has had its application for summary judgment on a copyright infringement claim by two screenwriters, over similarities between their work and the company’s Pirates of the Caribbean franchise, denied by a California Court.
Alfred and Martinez say that they submitted a screenplay called Pirates of the Caribbean to Disney via their producer in 2000, but that it was not returned to them for two years, by which time Pirates of the Caribbean: The Curse of the Black Pearl was already in production.
The pair claim that elements of their script defied conventional pirate tropes by making their main character funny, rather than feared, which is a distinguishing feature of the Captain Jack Sparrow character played by Johnny Depp in the franchise.
The claimants had previously suffered a set-back when a court granted Disney’s application to dismiss the claim on the basis of a finding that the parties’ works were not substantially similar as a matter of law.
That decision, however, was overturned on appeal, with the Appeal Court finding that the claimants’ screenplay ‘shares sufficient similarities with the film to survive a motion to dismiss’ and that it was difficult to know at such an early stage of the proceedings whether the elements the respective works shared were unprotectable material.
The Appeal Court concluded that ‘additional evidence would help inform the question of substantial similarity’ and ‘expert testimony would aid in determining whether the similarities Plaintiffs identify are qualitatively significant’.
The Court reversed the dismissal of the claim and sent it back to be heard by the court below. Both parties submitted expert reports on Disney’s application for summary judgment, in which Disney argued that both the claimants’ screenplay and the film Pirates of the Caribbean: The Curse of the Black Pearl are based on Disney’s pre-existing Pirates of the Caribbean theme park ride.
Notwithstanding Disney’s criticisms of the content of the claimants’ expert’s report, the Judge held that two conflicting opinions meant that there was ‘a genuine issue of material fact in dispute regarding whether the works are substantially similar’ and that any battle of experts must be left for the jury’s resolution.
Issued claims concerning alleged copyright infringement of scripts or concepts by film-makers are fairly unusual and, in English law, are frequently the subject of successful applications for summary judgment. This US case however looks set to continue towards trial. zoom-in will report on any developments.
Hollywood actor James Franco has been subpoenaed to give evidence about allegations of domestic violence by Johnny Depp towards Amber Heard in the latest twist in Depp’s $50 million US defamation claim against his ex-wife, which is listed for trial in Virginia this year.
Depp’s lawyers have obtained an order for Franco to give a deposition (sworn out of court evidence) early this year, in relation to his knowledge of issues in the defamation claim.
Franco lived in the same apartment building as Heard and a surveillance video from May 2016 showed the two of them getting into a lift together 24 hours after a fight took place between Heard and Depp, which Heard alleged resulted in her receiving a black eye.
Franco is to be questioned as a potential witness to that incident as well as in relation to an allegation of a relationship with Heard while she was still married to Depp.
Depp has accused Heard of sleeping with Franco, during the filming of The Adderall Diaries, in which the pair starred together, in 2015. Heard has denied the claim.
Depp famously brought a defamation claim here in the UK against the publisher of The Sun over domestic violence allegations, during which Heard gave evidence for the newspaper. In November 2020, the Judge ultimately found that the newspaper’s statement – that Depp was a ‘wife beater’- was substantially true based on the evidence.
The US claim has been brought over statements in an op-ed written by Heard in The Washington Post in 2018, which did not name Depp, but in which she alleged she was a victim of domestic abuse.
Depp believes it cost him a role in Disney’s Pirates Of The Caribbean and brought a claim for defamation in Virginia, where The Washington Post is printed.
This latest trial is scheduled to take place on 11 April 2022 when it is due to be heard over two weeks before a jury.
Part of the enormous media interest in the 2020 trial related to the way in which the famous friends, former partners, and co-stars of Depp and Heard, including Vanessa Paradis, Paul Bettany and others, featured in the dispute.
Franco has recently generated significant headlines in his own right, as a result of his admission in December that he was addicted to sex and ‘completely blind to people’s feelings’, leading to him being ‘hooked’ on the attention he received from women for 20 years.
The role Franco now seems set to play, as a witness to key events in Depp’s and Heard’s relationship, will be yet another eye-catching feature of the forthcoming trial of the claim.
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