13 Nov 13 November 2023
In this issue of zoom-in brief, Scarlett Johansson threatens legal action after an AI platform used AI images resembling her in an advert; Ofcom finds that the BBC’s use of an archive interview in its 2023 documentary about the Brink’s-Mat robbery was unfair; a US copyright claim brought by a choreographer against the creators of the Fortnite video game is to be reconsidered after a successful appeal; whilst in the UK, streaming platforms look set to be subject to further regulation when the Media Bill comes in to force.
US – IP – Scarlett Johansson threatens legal action in response to AI depiction
An AI app, Lisa AI, has reportedly been sent a cease-and-desist letter by Scarlett Johansson after using her likeness in an advert posted on the social media platform X, formerly known as Twitter.
The advert allegedly featured a short, genuine video of Johansson and then a variety of AI-generated images that resembled her. A voiceover with a similar voice to Johansson explained that the app could be used to generate images and videos. Fine print beneath the video stated that the images were ‘produced by Lisa AI. It has nothing to do with this person’.
Johansson has previously raised concerns about the use of artificial intelligence to imitate the likeness of celebrities, calling for regulation against ‘deepfakes’: realistic AI-generated images, videos and sound clips. The use of AI was also a central concern of the recent Hollywood actors’ strike.
Whereas in some states in the USA there are strong legal protections against the use of an individual’s likeness for the purpose of advertisement or promotion, there is no direct prohibition on using a person’s personality for commercial purposes in England. The use of deepfakes can, however, potentially enable the person depicted to bring a claim for passing off if it suggests a false endorsement of goods or services, and if it causes serious harm to his or her reputation it could also form the basis for a defamation claim. In addition, using someone’s likeness is likely to amount to processing under UK data protection law, providing another potential avenue for redress.
Given the significant spread of AI, similar issues are likely to arise more frequently, and it may not be just celebrities who are faced with the difficulties of third parties using their likeness.
Regulation – Ofcom upholds BBC documentary fairness complaint
Ofcom has upheld a fairness complaint brought by a man called Arthur Lewis-Gray about the March 2023 BBC documentary The Gold: Inside Story which examined the infamous 1983 Brink’s-Mat robbery.
The programme looked at the use of ‘corrupt’ lawyers and accountants to launder the proceeds of the robbery and included an archive interview with Mr Lewis-Grey in which he discussed methods that could be used to ‘hide’ money in the Isle of Man. Mr Lewis-Gray was not identified by name in the programme or further referred to.
Mr Lewis-Gray claimed that the use of the clip was unfair to him because it had been taken from an unrelated broadcast, was ‘shorn of context’ and failed to explain that he was giving a hypothetical answer to the interviewer. He argued that the re-use of the footage gave the impression he was an ‘enthusiastic seller’ of offshore services ‘regardless of the outcome’, which was false and misleading.
The BBC argued the context demonstrated to viewers that Mr Lewis-Grey was not making an ‘apparently frivolous’ comment on serious crime or that he was an ‘enthusiastic seller’ of offshore financial services in the Isle of Man but it accepted there could have been greater clarity about his status and noted that it had since removed the clip featuring him.
Ofcom upheld the complaint and concluded that Mr Lewis-Grey had been treated unfairly in the programme. It accepted the BBC’s argument that the way in which the footage had been used did not suggest that Mr Lewis-Grey was commenting on the specific events of the robbery. However, it agreed with Mr Lewis-Grey that the material was ‘shorn of context’ and the programme failed to explain his role or that he was answering a hypothetical question.
A copyright claim brought by choreographer Kyle Hanagami against Epic Games Inc, the creator of the videogame Fortnite, is set to be reconsidered after a US appeals court overturned a lower court’s decision to dismiss it.
Mr Hanagami accuses Epic Games of profiting from his choreography through the animations in the game, known as an ‘emote’, one of which he says used movements from a five-minute dance routine that he holds US copyright registration in.
The appeals court agreed with the district court that choreography is composed of various elements that cannot be protected when considered in isolation. However, it held that the district court was wrong when it referred to single aspects of choreography as ‘poses’, describing that approach as like calling music ‘just notes’. In addition, it wasn’t just the poses that were relevant, but also other elements such as the use of space, timing and repetition, the appeals court reasoned.
The appeals court held that it was plausible that Hanagami’s creative choices could give rise to a copyright claim and the district court had erred when dismissing Hanagami’s claim on the ground the allegedly copied choreography was an insubstantial part of the overall work.
As a result, Hanagami’s claim has been remitted to the district court to be considered afresh. If successful, it could have significant ramifications for Epic Games. zoom-in will continue to monitor the case over the coming months.
On 7 November, it was confirmed in the King’s Speech that the UK Government is moving ahead with plans to further regulate streaming services in the UK.
Ofcom already has some regulatory oversight of certain streaming (or ‘video-on-demand’) platforms, for example, the On Demand Programme Service Rules prohibit UK-based platforms from making available material that is likely to incite hatred based on race, sex, religion or nationality.
However, the Media Bill will increase Ofcom’s remit to cover non-UK-based platforms and will also see Ofcom draft and enforce a new video-on-demand code, which will place obligations on streaming services that go beyond those that are in the current on-demand rules.
If it comes into force, the Media Bill will amount to a significant change to the current media ecosystem. At present, some of the major streaming platforms voluntarily comply with some of the requirements that are otherwise placed on traditional broadcasters.
However, Netflix had previously warned of a potential ‘chilling effect’ that a greater regulatory burden could have on streaming platforms. In its written submission to the Culture, Media and Sport Committee, Netflix waned that streaming platforms might pre-emptively remove films and TV shows to comply with its regulatory obligations. It is likely that the UK Government has sought to head off such concerns with the express reference to the adoption of a ‘proportionate’ Code.
Abbas Media Law is a niche law firm, specialising in advice to independent production companies and broadcasters. We are true experts in our field: all lawyers and advisors have in the past worked either in-house for broadcasters and/or production companies. Accordingly, we fully understand production and the needs of our clients. We offer expert advice and representation on all programme content related matters (legal and regulatory), all aspects of business affairs, as well as complaints-handling and litigation.