21 Jan 21 January 2022
In this issue of zoom-in brief, Alec Baldwin is sued over Instagram post alleging a US family’s involvement in the Capitol riots, LEGO faces a copyright infringement claim over Queer Eye jacket, Aaron Bank’s libel trial concludes and Cardi B tells court that Tasha K’s claims made her suicidal.
Defamation (US)-Baldwin sued for defamation over Capitol riot Instagram post
Three family members of a US Marine who died in Afghanistan are suing Hollywood actor Alec Baldwin over his accusations that they participated in the January 2021 riots at the Capitol in Washington DC. Seeking a jury trial and $25 million in damages, the McCollum sisters (Roice and Cheyenne McCollum) and Rylee’s wife (Jiennah McCollum) have alleged defamation, invasion of privacy, intentional infliction of emotional distress and negligence by Baldwin.
Rylee McCollum was one of 13 US armed forces personnel who died in an attack on Kabul airport on 26 August 2021. According to the complaint, Baldwin reached out to Roice following Rylee’s death and donated $5,000 towards a GoFundMe account for his widow and child.
In January this year, Roice shared a photo of herself in Washington DC at a crowded protest with the caption ‘Throwback’ upon which Baldwin commented ‘[a]re you the same woman that I sent the $ to for your sister’s husband who was killed during the Afghanistan exit.’ According to the lawsuit, Baldwin subsequently began privately messaging Roice, calling her a ‘Jan 6. Rioter’, and an ‘insurrectionist’, adding ‘I reposted your photo. Good luck,’ a phrase that the McCollums argue establishes Baldwin’s ‘malicious intent’.
In this exchange, Roice is alleged to have told Baldwin that she had ‘already had [her] sit down with the FBI.’ The McCollums argue that on this basis Baldwin knew or should have known that the accusations were false when he sent them, and that ‘Roice was interviewed by the FBI after the event and was cleared of any wrongdoing.’
The lawsuit adds that Baldwin shared Roice’s photo on his own account, which has 2.4 million followers, and said that ‘I offered to send her sister-in-law [Jiennah McCollum] some $ as a tribute to her late brother, his widow and their child. Which I did. As a tribute to a fallen soldier. Then I find this. Truth is stranger than fiction’.
The claim goes on to outline the apparent abuse towards the McCollum family that followed Baldwin’s post with ‘hundreds of hateful messages’ including one to ‘get raped and die… Your brother got what he deserved’. According to the lawsuit, Rylee’s other sister Cheyenne and his wife Jiennah received subsequent hate mail within hours of Baldwin’s post. Both Cheyenne and Jiennah have identified themselves as people ‘about whom and to whom the posts were made’.
At the time of writing, Baldwin is yet to comment.
Baldwin is separately at the centre of ongoing investigations in to the death of cinematographer, Halyna Hutchins, after the prop gun loaded with a live round that he was holding was discharged on the set of his film, Rust, in October 2021.
Copyright (US) – LEGO sued for copyright infringement over Queer Eye jacket
An artist who designed a leather jacket for Queer Eye Cast member Antoni Porowski has sued LEGO for copyright infringement, claiming that a jacket included in a LEGO set based on the Netflix show is a copy of his design.
The artist, James Concannon, has brought a claim in Connecticut for damages or an account of profits against LEGO System, Inc. the US arm of the Danish toy giant.
Concannon, who describes himself as a working artist who has a ‘signature propaganda-infused aesthetic’ and who ‘specializes in the infiltration and subversion of pop culture’, created a custom leather jacket as a gift for Porowski, who is one of the stars of Netflix’s long-running Queer Eye series.
After being approached by the producers of Queer Eye for clearance for Porowski to wear his custom-made T shirts, Concannon learnt that Porowski was a fan, and became friends with him. The friendship led to Concannon giving custom-made clothes to Porowski, for which Queer Eye’s producers generally sought Concannon’s permission when they featured on the show. Concannon’s black leather biker jacket was created after Porowski sent Concannon a plain jacket to decorate – it had distinctive emblems including a skull stencilled onto it, and a logo on the back, although in this instance he did not expressly give permission for it to feature on the show.
In September 2021, LEGO announced the release of a ’Queer Eye – The Fab 5 Loft’ set, based on the Queer Eye series.
Concannon claims that the set includes a ‘LEGO version’ of the jacket, which he says is a ‘blatant copy’ of his original design. Concannon says that this took place without permission, the offer of compensation or credit, and amounts to the commercial exploitation of his artwork for free.
According to Concannon, LEGO instead offered the artist a free Fab 5 Loft set, which retails for $99.99 for his six-year-old son to play with, but later revoked the offer telling him that it does not give away its products for free.
When he threatened proceedings, LEGO argued that by giving the jacket to Porowski in the knowledge that he would wear it on the show, Concannon had granted an ‘implied license’ to Netflix to use the jacket as it pleased including by sub-licensing the work to LEGO.
Copyright claims in this country relating to clothes are rare as clothes themselves are utilitarian in nature and not works of art, although words and images on the surface of clothing items may be protected as artistic graphic works.
The argument by LEGO referred to in Concannon’s complaint that it could rely on an implied licence appears ambitious in the context of large-scale commercial exploitation within an internationally available product.
The complaint highlights the potential dangers of failing to consider the rights of artists and designers in creating and selling mass-market products.
Defamation - Aaron Banks libel trial concludes
Friday 21st January saw closing arguments in the trial of the long-running libel claim between Aaron Banks and Carole Cadwalladr. Leave.EU co-founder Banks is suing the award-winning freelance Observer and Guardian journalist over comments that she made in a 2019 Ted Talk – ‘Facebook’s Role in Brexit and the Threat to Democracy’ – and a related Tweet.
In 2019, Mr Justice Saini held that the statements would have been understood to mean that ‘On more than one occasion Mr Banks told untruths about a secret relationship he had with the Russian government in relation to acceptance of foreign funding of electoral campaigns in breach of the law on such funding. ’ Banks claims that this is seriously defamatory of him, which Cadwalladr denies.
Cadwalladr, who is supported by 19 press-freedom groups including Reporters without Borders, defends the claim on the basis that the remarks were made in the public interest. She previously also relied on defences of truth and limitation, but these were withdrawn after the judgment of Mr Justice Saini.
To make good this defence, under s.4 of the Defamation Act 2013, she will have to show that the reporting concerned a matter of public interest, and that she reasonably believed that her statements were in the public interest. This latter requirement focuses upon her conduct as a journalist.
Banks denies that Cadwalladr had the requisite reasonable belief. In her witness statement, she said: ‘It did not at any time occur to me to send a right-of-reply to [Banks] in the context of the Ted talk. I was reporting nothing new. I had said every fact in my talk many times before.’
In his closing speech before the High Court on Friday (21stJanuary), Claimant counsel William McCormick QC claimed that Banks’ reputation has been damaged in the eyes of others as a result of Cadwalladr’s statements and addressed allegations by Cadwalladr and her allies that the claim is a SLAPP (Strategic Litigation Against Public Participation) case, submitting that ‘this suit was always brought in good faith for a proper purpose’. Banks had previously told the court ‘I was not sure how else I was expected to correct the record and I certainly cannot do so if she insists on being able to repeat false claims.’
Gavin Millar QC for Cadwalladr summarised the defence case and told the Court that Banks failed to make good his claim, including that he suffered serious harm: ‘we say the claimant has not climbed up that hill needed to get his claim off the ground’. He said that Banks had already sustained reputational damage elsewhere, and that Cadwalladr was only repeating information in the public domain.
Cadwalladr, who could face a costs order of over £1m and is fundraising to finance her defence, is understood to be risking bankruptcy if she loses.
The Judge has concluded that the judgment will be reserved whilst consideration is made on the verdict.
Defamation (US)– Cardi B tells court vlogger claims left her ‘suicidal’
Cardi B has testified that allegations made against her online by vlogger Latasha Kebe, also known as Tasha K, led to her having ‘suicidal thoughts’ and feeling ‘defeated and depressed’, as the New York rapper’s libel lawsuit in the US unfolds.
The action, filed in March 2019, is centred on claims that Tasha K levelled various false accusations against Cardi B in dozens of videos on her unWinewithTashaK YouTube channel in 2018 and 2019, including that Cardi B had worked as a prostitute and contracted herpes.
On 13 January 2022, Cardi B, whose real name is Belcalis Marlenis Almánzar, gave evidence in a federal court in Atlanta, Georgia, about the effect of the online posts on her, saying, in an emotional testimony:
‘I had suicidal thoughts every single day, to the point that I felt like I was being a burden to my family.’
The rapper, who is married to fellow musician Offset, and welcomed daughter Kulture Kiari in July 2018, said she felt ‘defeated and depressed’ and ‘didn’t want to sleep with my husband’. She added that online comments arising from the allegation that she had contracted herpes left her feeling that she ‘didn’t deserve my kid’.
To succeed in her libel lawsuit, Cardi B will have to satisfy the court not just that Tasha K published statements which damaged her reputation, but that the statements were published with malicious intent.
Tasha K previously brought a $3 million countersuit against Cardi B, alleging that the Grammy Award-winning artist had made threats against her: that claim was dismissed last July, with the judge citing a lack of evidence.
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