15 Jul 18 July 2022
In this issue of zoom-in brief, in an important UK decision on copyright in fictional characters, a ‘dining experience’ based on sitcom Only Fools and Horses is found to breach copyright law. In the US, Sacha Baron Cohen is successful in a defamation appeal brought against him by politician Roy Moore; the comedian, Lewis Black, brings a copyright infringement claim against streaming giant, Pandora; whilst back in the UK, Prince Harry is successful in the first round of his libel claim against the Mail on Sunday.
Copyright & passing off – Only Fools and Horses copyright win sets new precedent on copyright in characters
The High Court has ruled that an ‘interactive theatrical dining experience’ marketed as a ‘loving tribute’ to the hit sitcom Only Fools and Horses breaches copyright law.
Shazam Productions, a company owned and controlled by the family of John Sullivan (the sitcom’s creator) commenced proceedings against the operators of the ‘Only Fools The (cushty) Dining Experience’. During the experience, audience members enjoy a three-course meal whilst actors embody the mannerisms, voices and catchphrases of much-loved characters Del Boy, Rodney, Uncle Albert, Cassandra, Boycie, and Marlene.
The Court held that Shazam held copyright in two different components of the sitcom. First, the Court held that each Only Fools and Horses script is a dramatic work, and that a substantial part of the scripts had been copied by the dining experience.
Second – and more significantly – the Court accepted the novel argument that the character of Del Boy was itself a literary work. The judge recognised that there was ‘surprisingly little discussion in English case law’ on whether copyright might subsist in a character, but noted that both US and German law permits copyright to persist in characters if they are sufficiently complex and distinctive, such as Astrid Lindgren’s Pippi Longstocking and Sir Arthur Conan Doyle’s Sherlock Holmes. The judge’s decision sets an important precedent in England and will heighten the importance of seeking permission from authors before evoking distinctive characters in new works.
The Court went on to reject the defences of fair dealing for the purposes of parody or pastiche, noting that the dining experience’s scripts did not evoke the sitcom to express humour, mock the show or critically engage with it: the humour was already contained in the borrowed material. In any case, the dealing was not ‘fair’ – the judge going so far as to find that the dining experience ‘amounted in substance to the creation of a new episode’ of the show. The decision is a rare instance of these particular fair dealing defences being considered by the courts.
Separately, Shazam Productions succeeded in a passing off claim. The judge accepted that members of the public would only want to see one dramatic performance featuring characters from the sitcom, and that there was a real likelihood of diversion of trade from the official Only Fools and Horses musical.
Commenting on the judgment, a director of Shazam remarked that ‘being a sophisticated man of culture, [Del Boy] would be particularly chuffed with being described as a “literary work.”’
Defamation (US) – Alabama judge loses defamation appeal against Sacha Baron Cohen
Actor Sacha Baron Cohen was victorious in an appeal brought by Roy Moore, a former judge of the Supreme Court of Alabama and former Senate candidate.
Judge Moore sued over a 2017 interview on the CBS programme, Who is America. As part of the show, Baron Cohen convinced Judge Moore to fly to Washington DC to receive an award for his support of Israel. This was a ruse: Baron Cohen disguised himself as an anti-terrorism expert, and described a device developed by the Israeli military which could identify sex offenders and paedophiles. Baron Cohen then produced a ‘wand-like object’ which beeped when he waved it over Judge Moore. This was in reference to allegations against Moore of sexual misconduct towards teenagers – which he denies – which emerged during his failed US Senate race in 2017.
In response, Judge Moore and his wife Kayla commenced claims for fraud and infliction of emotional distress. Judge Moore also sued in defamation. In 2021, the US District Court granted Baron Cohen summary judgment on the claim. This week, the US Court of Appeals upheld that decision.
A key factor in the decision was a consent agreement signed by Moore, in which he waived ‘any claims’, including assertions of inflictions of emotional distress, defamation, fraud and ‘intrusion or invasion of privacy (such as any allegedly sexual oriented or offensive behaviour or questioning)’. Judge Moore sought to argue that this waiver was unenforceable because (1) his consent was procured fraudulently, and (2) he had modified the form by hand by crossing out the reference to “sexual oriented” behaviour or questioning.
However, the Court of Appeals pointed to a stipulation in the consent agreement that Moore did not rely on any representations made to him about the programme – finding that this ‘destroy[ed] the allegations in [his] complaint that the agreement was executed in reliance upon these contrary oral representations’. Further, there was no ambiguity in the language of the agreement as to claims asserting infliction of emotional distress, defamation and fraud. Therefore, the handwritten amendment in relation to privacy claims was irrelevant.
The claim by Kayla Moore also failed, as it was barred by the First Amendment. The Court emphasised that heightened First Amendment protections apply where the underlying speech relates to a matter of public concern. Here, Judge Moore had been a candidate for political office and allegations of wrongdoing bore on his fitness for office. The Appeals court agreed that the segment could not reasonably have been interpreted as stating actual facts about Judge Moore and was ‘clearly comedy’. Baron Cohen may have implied that he believed Judge Moore’s accusers, but he did not imply the existence of any independent factual basis for that belief.
The decision is a powerful reminder of the impact of the First Amendment on the US media law landscape, which is capable of acting as a bar to defamation claims even where the allegations are extremely serious. By contrast, if the case had been brought in England & Wales, it is likely that Baron Cohen would have sought to rely on the defences of public interest (Defamation Act section 4) or honest opinion (section 3), or perhaps that Moore did not suffer serious harm due to the clearly humorous nature of the allegations.
Judge Moore has indicated he will further appeal the decision, stating that Baron Cohen’s ‘pusillanimous and fraudulent conduct must be stopped’.
Copyright (US) - Lewis Black brings copyright infringement lawsuit over comedy material
Comedian Lewis Black has brought proceedings in the Los Angeles Federal Court against streaming giant Pandora for breach of copyright, seeking more than $10 million in damages in relation to sixty-eight of his works. Black, who became famous through his appearances on The Daily Show, is the latest comedian to pursue a claim against the platform.
The total claims by comedians now amount to more than $70 million, and include lawsuits by names such as Andrew Dice Clay, Nick Di Paolo and the estates of Robin Williams and George Carlin earlier this year.
The series of lawsuits seek to challenge the compensation model paid by Pandora to comedians and ‘spoken word’ artists. For musical compositions, Pandora pays royalties to the owners of copyright in the sound recording and the underlying written music. However, comedians do not receive the same benefits, and are paid compensation for the recording but not the composition itself.
Spoken Giants, a rights administration company representing hundreds of comics such as Black, is seeking to challenge this anomaly, arguing: ‘It’s the equivalent of saying a license with Columbia Records to stream a Bob Dylan album negates the need to also pay song-writing royalties to him’.
Pandora is the largest digital broadcast and streaming music provider in the US. The lawsuit accuses Pandora of behaving typically of ‘Goliaths’ by deciding to infringe Black’s copyright and ‘deal with the consequences later’. The lawsuit refers to a financial filing document by Pandora in 2017, prior to its acquisition by current parent company SiriusXM, which listed as a ‘liability’ that it streamed comedy without obtaining publishing rights.
If Black and others are successful, the case will have major implications for comedians as rights holders, both on Pandora and other streaming platforms.
Defamation - Progress in Prince Harry defamation claim against Mail on Sunday
Prince Harry was successful in the first stage of his defamation action against the Mail on Sunday, in a judgment delivered by the High Court last week.
Prince Harry has sued the Mail on Sunday over the February 2022 article, ‘REVEALED: How Harry tried to keep his legal fight over bodyguards secret… then minutes after MoS broke his story his PR machine tried to put positive spin on the dispute’. This arose in the context of the Prince’s dispute with the Home Office, after being informed that his personal protective security would be reduced after stepping back from royal duties.
The judgment addressed three preliminary issues: the meaning of the article, whether the article was defamatory at common law, and whether the meanings were statements of fact or opinion. As preliminary issue hearings have become the norm in defamation proceedings, the judge noted that the legal principles are ‘well established and not in any dispute between the parties’.
The judge, Mr Justice Nicklin, held that the article bore three separate meanings: (a) that Prince Harry had sought confidentiality restrictions that were far-reaching and unjustifiably wide, and were rightly challenged by the Home Office; (b) that Prince Harry was responsible for public statements which did not reflect the true position; and (c) that Prince Harry ‘was responsible for attempting to mislead and confuse the public as to the true position, which was ironic given that he now held a public role in tackling “misinformation.”’ The judge was satisfied that parts of these meanings were opinion, namely the words ‘far reaching and unjustifiably wide’, ‘rightly’ and the entirety of meaning (c). However, he rejected Prince Harry’s argument that the article accused him of ‘lying’, and differentiated between ‘lying’ and ‘spinning’ facts.
On the final issue, the judge ‘narrowly’ concluded that meaning (a) is defamatory on its own, as the article signalled that Prince Harry was worthy of criticism. He was also satisfied that meanings (b) and (c) were defamatory at common law when taken together, as the allegation being made in the article was ‘very much that the object was to mislead the public’.
The Mail on Sunday is now required to file a defence in the claim. Notably, the decision that an article is defamatory at common law is separate from a Claimant’s requirement to prove that they suffered serious harm to reputation, which is a more onerous hurdle.
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