In this issue of zoom-in brief, closing arguments are set to begin in Sarah Palin’s libel trial against the New York Times, explosive texts are produced in court in the ‘Wagatha Christie’ defamation dispute, whilst pop artist Jeff Koons seeks to have copyright claim against him dismissed.

Sarah Palin is suing the New York Times and its former editor for defamation over a 2017 editorial which incorrectly linked her to a 2011 mass shooting in an Arizona car park.  The attack, by gunman Jared Lee Loughner, left six dead and 12 injured – including Representative Gabby Giffords.

The next day, following online backlash, the Times issued a correction and an apology – but did not mention Palin.  The former Republican vice-presidential candidate and Governor of Alaska then sued.

The case was dismissed by Judge Jed Rakoff in August 2017.  However, in 2019, a Federal Appeals Court overturned the lower court’s decision, which set the wheels in motion once again.  Last week the claim reached trial – the paper’s first libel trial in 20 years.

At its core, the case concerns the requirement that public figures wishing to sue for defamation must prove that a defendant acted with ‘actual malice’ in publishing defamatory material – a fundamental protection of free speech in the US.  Following New York Times v Sullivan, a defendant must be shown to knowingly have published a falsehood or have had reckless disregard as to its truth or falsity.

Palin, 57, claims that the actions of James Bennet, the then-editor of the Times editorial board and author of the disputed passage in the Article, met this high standard.  Her attorneys have argued that he had a ‘political narrative’ and wilfully disregarded articles disproving the claim.

Both Bennet and the New York Times deny that he acted with actual malice.  Bennet told the court that he edited the piece under time pressure and never intended to suggest that the shooting was incited by Palin or anyone else.  He described how he was upset, confused and blindsided by the response to the article.  The paper’s attorney, David Axelrod, argued that they merely made a mistake, and has asked Judge Rakoff to dismiss the case on the basis that Palin failed to provide evidential proof of actual malice.

The Judge has already indicated that he thinks evidence of Bennet’s ill-will towards Palin is ‘quite modest indeed’ and has ruled that he will not allow the jury to award punitive damages.

Palin told the court on Thursday how she felt ‘powerless’ and ‘mortified’ upon reading the article.  Although, during cross-examination Palin struggled to convey the reputational damage she experienced by virtue of the publication, with David Axelrod pointing to Palin’s TV appearances on shows such as The Masked Singer and Fox News.

Closing arguments are expected to begin today.

The decision will be eagerly awaited by the American media and has the potential to define – and even diminish – the First Amendment protections for the press.  As put by the Washington Post’s Erik Wemple: ‘At issue is the elasticity of the protections that allow news organizations to present tough coverage of public figures. Or, to put things a bit more sharply, the case will help demarcate the line between really bad journalism and libelous journalism.’

zoom-in will report on developments.

The High Court has this week considered applications by both Coleen Rooney and Rebekah Vardy in a footballers’ wives libel claim that has hooked the British media and public alike. Coleen Rooney is married to England footballing legend and current Derby County manager, Wayne Rooney; Rebekah Vardy is the wife of Leicester City player, Jamie Vardy.

The libel claim concerns 2019 social media posts by Rooney, in which she accused Vardy of personally leaking private content to the tabloid press without Rooney’s permission. It was instantly dubbed ‘Wagatha Christie’, so-called because of Rooney’s elaborate ‘detective work’ in pursuit of the source of the suspected leaks, leading to her shocking revelation that: ‘It’s………….. Rebekah Vardy’s account’.

Both parties now apply for further disclosure ahead of the trial in May. Rooney – who defends the allegation as true and claims that publication was in the public interest – also applies to bring Caroline Watt, Vardy’s PR agent, into the case. Rooney claims that Vardy authorised Watt to monitor Rooney’s social media posts and send information to The Sun newspaper. Rooney intends to sue both women for misuse of private information and breach of data protection laws and argues that all the claims should be heard together.

Vardy and Watt both deny leaking the stories to the press.

On Tuesday, WhatsApp messages were put before the court. They included discussions between Vardy and Watt, after Rooney had posted on her private Instagram account that her car was damaged. Vardy told Watt,‘…she’s a nasty bitch x’ and that she ‘would love to leak those stories x.’ Watt replied: ‘I would have tried to have done a story on Coleen but the evidence has been deleted x’.

After the story ended up in the papers, Rooney tweeted out her concern. Watt then messaged Vardy: ‘Such a victim. Poor Coleen…And it wasn’t someone she trusted. It was me’, and continued ‘If she does try to say it or that it was me and it’s undeniably obvious what we’ll do is say I left the company I was working for in Jan and one of the girls in the office has my old laptop that had your passwords saved on it so it will have been them and now you will have to change everything x.’

Vardy later told Watt: ‘She thinks it’s me that’s been doing stories on her! Of all the people on her Instagram ffs!’.

David Sherborne, counsel for Rooney, told the High Court that the WhatsApp exchanges showed that Vardy frequently received payment from the Sun newspaper for ‘habitually’ leaking private information to its journalists.

Vardy denies this suggestion, claiming that Rooney relies on ‘selective’ and ‘incomplete’ messages, and that ‘nasty bitch’ refers to someone else. Hugh Tomlinson QC for Vardy also pointed to messages in which she speculated that Rooney’s own PR team were behind the leaks.

In respect of disclosure, Mr Tomlinson QC explained that Watt’s phone was no longer available, as it had been accidentally lost off the side of a boat in the North Sea after it was hit by a wave, shortly after a legal request was made to search the device for potential evidence. It was also said that Vardy’s WhatsApp messages and backups disappeared whilst they were being exported to her solicitors.

Mrs Justice Steyn’s ruling on these latest applications is expected on Monday.

The 2-day hearing follows a meaning trial, mediation and applications for summary judgment and strike out. However, the case finally appears to be reaching the final whistle, with all still to play for.

American pop culture artist Jeff Koons, perhaps most famous for creating balloon animals from stainless steel, is currently being sued in New York over a series of photographs which featured a serpentine platform built by the prop designer, Michael Hayden.

The platform, described in court filings as a ‘somber monochromatic three-dimensional serpent wrapped around a rock’, was created in 1988 for, and purchased by, Italian adult performer and Italian MP Ilona Staller (stage name Cicciolina). Snake-fan Cicciolina kept the platform in her home, and it is said that Hayden hoped she would use the platform to ‘perform sexually explicit scenes, both live and on camera’.

Shortly after the sale, Koons was hired by the Whitney Museum in New York to create a billboard, for which he photographed Staller on various sets in her Rome studio. Some of these erotic photographs were taken on Hayden’s platform and were used both for the billboard and a series entitled ‘Made in Heaven’. Some of the images were doctored by Koons to change certain features of the platform, such as the colour of the serpent, and in others it appears obscured by Ciccolina and Koons who are said to be ‘cavorting’ atop it.

Hayden did not give permission for his platform to be used in the series and only recently discovered three of the photographs in an Italian publication. He has since brought an action for copyright infringement and claims that these images caused a ‘media sensation’ and ‘scandal’ when it premiered.

In a motion filed last week, Koons asked the court to dismiss the claims, on the basis that the work was not entitled to copyright protection, as it was a ‘useful article’ with an ‘intrinsically utilitarian function’, despite its artistic elements.

Alternatively, he argued that he was making fair use of the sculpture, which was not the ‘major or dominant component’ of any of the three photographs.

He also claimed that his photographs did not serve as a competitive substitute for any market work, which Hayden has failed to exploit in 33 years.

Hayden’s attorney, Jordan Fletcher of Fletcher Law, told Reuters that Hayden disagrees with Koon’s motion and looks forward to presenting their arguments to the court.

Questions as to whether copyright exists in three-dimensional objects do from time to time arise.  The question, both in the US and UK courts, often turns on whether the work can properly be described as a work of art worthy of copyright protection, or whether the object is really utilitarian in nature, rather than artistic.  The case, should it reach trial, may give some further helpful indications as what does and does not constitute an artistic work worthy of copyright protection.  zoom-in will report on developments.

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