In this issue of zoom-in brief, legendary performer Tina Turner sues a tribute act; Northern Irish singer-songwriter Van Morrison is sued for libel; Ofcom rejects a privacy complaint about 24 Hours in Police Custody; and Meghan Markle is forced to apologise over forgotten emails.

The Queen of Rock ‘n’ Roll,Tina Turner, is suing a tribute act in Germany for looking too much like her.

The legendary singer’s legal action relates to Dorothea ‘Coco’ Fletcher, a Tina Turner tribute act in her 30s, who performs an unofficial show called Simply The Best. Tina Turner claims Ms Fletcher looks so much like her in promotional posters that fans are likely to mistakenly think Ms Turner is involved in her show’s production.

The lawsuit, which has now reached the German Federal Court is brought against Cofo Entertainment, a German firm that represents Ms Fletcher and other tribute acts including tributes to the Beatles, Elvis Presley and Frank Sinatra.

The posters for the show were changed after Turner was successful at an initial court hearing, when a court in Cologne found that the posters could be misleading to consumers. However, on appeal, the court decided that the risk of confusion did not outweigh Ms Fletcher’s right of artistic expression in relation to the posters. The case is now to be heard in the Federal Court and is expected to proceed early next year.

Ms Turner’s argument is that the posters are not ‘art’ but merely advertising, and that Ms Turner should have control of when her name and image are used for commercial purposes. Lawyers for Cofo Entertainment say that consumers would expect a tribute act to look like the real artist and would not be confused. They also say that a ruling against them could threaten the long-standing tribute act industry.

In England & Wales a claim of this nature would need to be brought as a claim in passing off. This is an action which can be brought by someone who has a reputation and goodwill in a brand or product, where someone else deceives the public through a misrepresentation into thinking that their product is part of that brand, or is endorsed by the brand, and which results in loss or damage to the brand.

Rihanna recently brought a passing off claim against Topshop over a T-shirt which featured a photograph of her but was not connected to or endorsed by her. Rihanna, who herself has a merchandising and endorsement brand, successfully argued that consumers would be confused into thinking the T-shirt had been endorsed by her.

In TV production, passing off complaints sometimes arise in connection with programme titles, for example when a title includes words and phrases (including registered trade marks) closely associated with other businesses, without consent.

Normally, the use of such words and phrases in titles is defensible in law because the use is descriptive in nature – they are not being used in a trademark sense ‘in relation to’ goods and services i.e. to denote trade origin.

Nevertheless, legal advice should be sought, particularly when considering using registered trademarks in titles without consent, as complaints can be time-consuming and expensive to deal with, irrespective of whether a legal claim is ultimately brought.

Singer-songwriter Sir Van Morrison is being sued for libel by Northern Irish Health Minister, Robin Swann.

Mr Swann is suing in relation to three incidents. The first was an incident at the Europa Hotel in Belfast, after a gig Van Morrison was due to play was cancelled at the last minute due to Covid-19 restrictions. The singer got on stage at a pre-show dinner event and chanted that Mr Swann was ‘very dangerous’. He was joined on stage by DUP MP Ian Paisley Jr. A clip of the incident went viral in June. Ian Paisley defended his actions as ‘parody’ and ‘banter’ but confirmed that he did not think the Minister was dangerous.

Mr Swann hit back in an op-ed with Rolling Stone Magazine in September. The piece included discussion of Van Morrison’s public comments on the Covid-19 pandemic. Swann wrote: ‘His words will give great comfort to the conspiracy theorists… The tinfoil hat brigade who crusade against masks and vaccines and think this is all a huge global plot to remove freedoms.’

The second incident relates to Van Morrison calling Mr Swann a ‘fraud’ when approached by a Sunday Life journalist. The third relates to a YouTube video, in which the singer again called Mr Swann ‘dangerous’.

Van Morrison has been an outspoken critic of Covid-19 restrictions. The 76year old singer, who was knighted in 2016, has released a number of songs critical of the way the pandemic has been handled, including one called ‘No More Lockdown’.

The ‘Brown-Eyed Girl’ singer is defending the proceedings. He asserts that the words used ‘related to a matter of public interest and constituted fair comment.’ His lawyers confirmed that a defence has been served and stated that Van Morrison ‘regrets that Mr Swann considered it necessary to issue proceedings.’

Van Morrison had brought a legal challenge to the ban on live music in Northern Ireland but dropped the action after restrictions were eased in August.

Ofcom has not upheld a complaint relating to an episode of 24 Hours in Police Custody.

The complaint was made by Ms X, the wife of a man featured in the programme, which followed Bedfordshire Police as they investigated a suspected insurance fraud by the complainant’s then husband, Mr McGrath. Mr McGrath was subsequently found guilty of fraud and perverting the course of justice, and sentenced to 8 years in prison.

Ms X complained of the filming and broadcast of footage of both the inside and outside of her home. In particular, the programme-makers filmed and broadcast footage of the police arriving to execute a warrant for the arrest of Mr McGrath at the couple’s property in the early morning, this included police bodycam footage. During this, Ms X could be seen for approximately 11 seconds, standing in her pajamas behind her husband in the hallway. Her face was blurred.

The programme also showed the police search of the property. Items related to the police investigation were shown. Other possessions such as artwork, photographs and documents were blurred.

In submissions to Ofcom, Channel 4 made clear that Ms X appeared in the background “at the very moment” her husband was having his rights read to him and the grounds of his arrest were being explained. This was considered to be “a vital part of the record”,  and also captured his reaction, namely: “… Well, I think all I can say is that I think I know what it’s about. So, if we speak down at the police station”.

Channel 4 also noted that both Mr McGrath and Ms X had been involved in a public criminal trial where Ms X was found not guilty on all counts, which the programme referred to.

Ofcom found that whilst Ms X had a reasonable expectation of privacy in relation to the filming and broadcast of footage inside her home, the programme was in the public interest, showing police actions and procedures relating to a complex fraud investigation. Obtaining and broadcasting footage of the police arresting Ms X’s husband inside their house, which incidentally captured footage of Ms X, was found to be proportionate.

Ofcom recognised that significant steps had been taken to limit any intrusive effect that the broadcast of her then husband’s arrest might have had on Ms X, including not showing details which identified the address of the property, not naming Ms X, obscuring Ms X’s face, as well as family possessions not directly linked to the police investigation.

No footage of or reference to Ms X’s four children was included in the programme. Nonetheless, as children under 16 were present in the house, Ofcom carefully scrutinised the programme maker’s decision to obtain the footage of the interior of the house in which the children resided at the time of the police search and the arrest of their father.

On balance, Ofcom considered that the public interest and the broadcaster’s right to freedom of expression outweighed Ms X and her children’s legitimate expectation of privacy. Ofcom found that the privacy of Ms X and her children was not unwarrantably infringed in connection with the obtaining of, or broadcast of, the footage included in the programme.

zoom-in has previously reported on a complaint made by Mr McGrath himself about both the episode, and the episode as featured within an episode of Gogglebox. That complaint was also not upheld.

The Court of Appeal this week heard the Mail on Sunday’s appeal in a case relating to a letter the Duchess of Sussex, Meghan Markle, had written to her father.

The Duchess sued Associated Newspapers Ltd, publishers of the Mail, over a 2018 article which published large parts of a handwritten letter she had sent to her father, after her wedding to Prince Harry. She sued in both privacy and copyright. The High Court agreed with her and granted summary judgment meaning that the case never went to a full trial.

The Mail are appealing that decision, saying that evidence needs to be heard before the court so that it can properly make a decision as to whether: (i) the Duchess had a reasonable expectation of privacy in the letter; (ii) its publication was a matter of public interest; and (iii) publication of parts of the letter represented Mr Markle’s right of reply to an article published in US magazine People which referred to the letter, and was a way of him correcting the narrative about him.

At the three-day hearing the Mail also sought permission to hear new evidence from former communications secretary to the Duke and Duchess, Jason Knauf. In his witness statement Knauf claimed that the Duchess wrote the letter knowing that it might be leaked and worded it carefully in case it was. She even discussed whether to address her father as “daddy”, not only because she called him that, but because it might pull at the heart strings if the letter was leaked.

His evidence also related to discussions between him and the authors of an unofficial biography of the Duke and Duchess entitled ‘Finding Freedom’. The couple have always denied cooperating with the writing of the book, but emails provided by Mr Knauf show the Duchess provided him with background information for his meeting with the authors. In a follow-up witness statement the Duchess apologised to the court for not referring to these emails in her earlier evidence, saying she had forgotten about them and never intended to mislead.

Lawyers for the Duchess maintained that Mr Knauf’s evidence did not undermine her case.  On the contrary, it was said on her behalf that she neither wanted nor intended for the letter to become public, but was simply aware of the possibility that it might.

The Duchess’ position was that the High Court had taken into account all relevant matters, was right to decide that the publication of the letter was ‘manifestly excessive and hence unlawful’, and there was no prospect that a different judgment would be reached after trial.

If the Mail is successful in its appeal, the case will go to a full trial, in which the Duchess of Sussex would likely be required to give evidence, something she is no doubt keen to avoid if possible.

The court will give its judgment at a later date.  zoom-in will report on developments as they arise.

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