In this issue of zoom-in brief, a Texas pastor sues Kayne West over the use of samples from his sermon in Donda track; streaming giant Pandora fights back, issuing a counterclaim in comedians’ copyright claim; Ofcom clarifies its contributor welfare position in Good Morning Britain complaint; whilst Adidas has its sports bra campaign banned by the ASA.

The rapper and fashion designer Kanye West, is being sued by Texas-based Bishop David Paul Moten over the alleged use of samples of his sermon in the track “Come to Life”, featured on the Grammy-nominated album “Donda”. The lawsuit also lists Universal Music Group Recordings, Def Jam Recordings, and G. O. O. D. Music (Kanye’s record label) as defendants.

In papers filed in Dallas County, Moten alleges that the rapper, who last year famously changed his name to ‘Ye’, sampled 70 seconds of his sermon in which Moten is heard saying “My soul cries out, ‘Hallelujah,’ and I thank God for saving me. I, I thank God,” and “Hallelujah (Thank You, Jesus) Hallelujah (Yes) Hallelujah…”.  Moten states that the sample amounts to around 20% of the total song.

Moten, who is seeking unspecified damages, further claims that Ye and the other defendants “have demonstrated an alarming pattern and practice of wilfully and egregiously sampling sound recordings of others without consent or permission.”

Ye and UMG are yet to respond to the lawsuit.

This is not the first time that Ye has faced allegations of this type. In 2019, Ronald Oslin Bobb-Semple reached a settlement with Ye over a sample of his voice which was allegedly used in Kids See Ghosts track “Freeee (Ghost Town Pt.2). Universal Music Group is also facing a similar suit for underpaid royalties from King Crimson rights holder Declan Colgan Music Ltd, in respect of a sample used on “Power” which featured on Ye’s 2010 album ‘My Beautiful Dark Twisted Fantasy’. UMG is yet to respond.

zoom-in previously reported that various comedy heavyweights were suing streaming giant, Pandora. Comedians Nick Di Paolo, Andrew Dice Clay, Bill Engvall and Ron White, and the estates of Robin Williams and George Carlin, have now consolidated their lawsuits into one. Word Collections, an agency representing the rights of comedians and other spoken word performers, work with all the comedians involved in this dispute. The lawsuit alleges that Pandora has failed to obtain the proper licences in respect of their material streamed on the platform – acquiring rights to the recordings themselves but not the underlying comedy material which would be classed as “literary works”. The lawsuit seeks damages for unpaid royalties for each infringement totalling approximately $41.55m.

Pandora previously acknowledged that its practice of only licensing the comedy recordings, which is at odds with the industry practice in respect of music recordings (for which streaming services obtain both the recording licence and the licence for the underlying songs).

Billboard reports that Pandora has now formally responded to the claim, taking aim at rights agency, Word Collections, writing that “Word Collections’ true business model is not that of a benign licensing agent or an advocate for comedians’ intellectual property rights. It is that of a cartel leader” and that this lawsuit seeks to violate competition law by creating a monopolistic portfolio of comedy rights that would result in the increased cost of streaming content. It highlighted that comedians previously chose to benefit from royalties and the promotion that results from being featured on their platform without complaint, “creating additional demand for their live performances and otherwise benefiting the comedians”.

Pandora has filed a countersuit in the form of an anti-trust action in the California federal court, accusing the comedians of unreasonable restraint of trade, conspiracy to monopolise, monopolisation and attempted monopolisation.  Pandora is seeking injunctive relief and treble damages and has demanded a jury trial.

Word Collections’ lawyer Richard Busch told Billboard: “We have seen [the legal filing], we vehemently disagree with it legally and factually, and we will be responding appropriately”.

Whether or not comedians were previously happy (or even aware) that streaming platforms only licensed their recordings, it is clear that there is a growing feeling of resentment towards this practice which could mark a watershed moment for the industry. Therefore, this case is proving to be no joke for not only Pandora but for all streaming services, which will no doubt be closely following its development.

In April 2021 Ofcom imposed widespread duties on broadcasters in respect of contributor welfare.

Practice 7.15 requires broadcasters to “take due care over the welfare of a contributor who might be at risk of significant harm as a result of taking part in a programme, except where the subject matter is trivial or their participation minor…”  This requires broadcasters to assess the vulnerability of their contributors and determine what support they may require in respect of their participation.

Practice 7.3 was also amended, which sets out the steps which should be taken to obtain informed consent – including informing contributors of the potential risks arising from their participation in the programme. This is one of the first complaints to be considered under these new rules.

In May 2021, ITV’s Good Morning Britain interviewed Bolton residents about the decision to impose greater Covid-19 restrictions in the town, due to the increased number of cases of the Delta/‘Indian’ variant.  In her vox pop, Ms F expressed concern about the rising cases, said that she won’t leave her house and, later, that she believed a new lockdown should be imposed.

Mr E complained to Ofcom that the interview had been edited unfairly, omitting Ms F’s references to not leaving the house “alone” and to her mental health issues. He said that Ms F was distressed by the clip being widely shared on social media and derogatory remarks made towards her. He claimed Practice 7.15 was engaged as she was a vulnerable contributor and, had reference been made to her mental health, she would have received less online abuse.

Secondly, Mr E complained that ITV had not obtained her informed consent because “a person approached in the street by a TV crew is taken by surprise and has little opportunity to reflect on what the consequences of an interview could be…” and that the social media reaction – caused by the above omissions – was unforeseeable, such that Ms F cannot have been considered to have provided informed consent as required under Practice 7.3.

Responding to the complaint, ITV explained that it had not considered Ms F to fall under Practice 7.15, which was not intended to apply to ‘minor contributors’. To do otherwise would impose an onerous duty on the relevant broadcasters and have a “chilling effect”.

It argued that a person’s contribution should be determined by the circumstances of filming not the consequences of their contribution. Nonetheless, even if Practice 7.15 was engaged, it said the interview had been edited fairly and was not out-of-line with the other contributors. ITV denied that Ms F used the word “alone”, or that the omission of reference to her mental health would have affected viewers’ perceptions. However, they had taken steps to prevent future broadcasts.

Further, ITV stated that, although it did not consider Ms F to fall within Practice 7.3 because she was not “a person invited to make a contribution” and her contribution was minor, it had obtained consent from Ms F in the usual way, by informing her of the nature and purpose of her contribution.

Ofcom reached a preliminary view of ‘Not Upheld’ which it affirmed in its final decision. Ms F’s seconds-long contribution was a relatively small component of just one of many of the reports featured. Accordingly, neither Practice 7.15, nor the additional measure in Practice 7.3 were engaged in respect of her contribution. It reviewed the interview and found that the vox pop was an accurate and fair reflection of her response.

Further, she had been given sufficient information to understand the conditions of her contribution and had provided her informed consent, which was not invalidated by ITV’s omission of her reference to her mental health. She had not used the word “alone”, so Ofcom did not consider this element of the complaint.

This decision will come as a relief to many broadcasters, who may otherwise have faced a much broader duty of care than first envisaged.

An Adidas advertising campaign has been banned by the Advertising Standards Agency (ASA) who determined that three sports bra advertisements breached two rules in the CAP code.  Adidas defended the imagery, maintaining that they are proud of the message.

The complaint centered on a tweet and two poster adverts which contained a series of photographs of bare breasts in a grid format, with one poster featuring similar images, but with the nipples pixelated, prompting 24 complaints to the ASA that the ads were gratuitous, harmful and offensive and unsuitable to be seen by children.  Upholding the complaints, the ASA instructed Adidas not to show the ads again.

The tweet showed the bare breasts of 20 women, identically cropped between the shoulders and the navel.  The accompanying caption read:

“We believe women’s breasts in all shapes and sizes deserve support and comfort. Which is why our new sports bra range contains 43 styles, so everyone can find the right fit for them. Explore the new adidas sports bra collection at [LINK]. #SupportIsEverything”.

One poster ad showed cropped images of bare breasts of 62 women, captioned: “The reasons we didn’t make just one new sports bra” and the other showed the same text and images of the breasts of 64 women with nipples pixelated.

The ASA received 24 complaints which largely focused on two issues: (i) the view that the use of nudity was gratuitous and objectified women by sexualising them, with complainants also challenging whether they were harmful and offensive; and (ii) whether the poster ads were appropriate for display where they could be seen by children.

In response, Adidas contended that the images were “intended to reflect and celebrate different shapes and sizes, illustrate diversity and demonstrate why tailored support bras were important.”  They drew attention to the safety of the models, who remained anonymous (as their faces weren’t on show) and noted that the models had volunteered to be in the ad and were supportive of its aims. The ad was intending to show breasts “simply as a part of a woman’s body”.  They said that CAP’s Copy Advice team had advised Adidas’ ad agency in the first instance that the images weren’t sexual, while also noting that there was a risk associated with nudity being used in advertising.  Adidas consequently did not place ads near schools or religious venues.

In their assessment, the ASA concluded that they did not consider the way the women were portrayed as sexually explicit or objectified, but that the “depiction of naked breasts was likely to be seen as explicit nudity”. They commented that breasts were the “main focus of the ads, and there was less emphasis on the bras themselves”.

Holding that the poster images were not suitable for use in untargeted media, particularly where they would be seen by children, the ASA found that the ads were “inappropriately targeted” and “likely to cause widespread offence”. Considering Adidas’ Twitter feed, the ASA commented that ordinarily, social media was used to promote sportswear for women and that “explicit nudity was not in keeping with their usual content”. The “explicit nudity” led the ASA to conclude that the ad was ‘likely to cause widespread offence’.

Twitter did not delete the post as it did not consider the ad to be in breach of their Terms of Service.

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. Visit www.abbasmedialaw.com or contact us directly at info@abbasmedialaw.com.