25 Apr 25 April 2022
In this issue of zoom-in brief, the Kardashian-Jenner family are in court in Los Angeles in a defamation action brought by Blac Chyna; Netflix is to face a lawsuit in California over its Afflicted docuseries; the multi-talented Emily Ratajkowski settles a copyright infringement claim in the US over her use on Instagram of a photograph of herself; Showtime faces a trademark infringement claim over its ‘UFO’ docuseries; whilst in the UK, the Vardy v Rooney saga rumbles on, as the trial approaches.
The trial of Blac Chyna’s defamation claim against four members of the Kardashian-Jenner family – Kim, Khloe, Kris and Kylie – has commenced in Los Angeles.
Chyna (whose real name is Angela White) is the former fiancée of Kardashian sibling Rob. She commenced legal proceedings against the four women in 2017 for $100 million, alleging they made defamatory claims that she was physically abusive towards Rob to cancel their reality TV show Rob & Chyna. The Kardashian-Jenners deny the claims – with their lawyer arguing in court that the show was in fact cancelled because Rob and Chyna broke up.
Proceedings began on 18 April 2022 with jury selection, where CBS News reported that the attorneys ‘struggled throughout the afternoon to find panellists with an open mind’. Controversy continued on 19 April 2022 when Judge Randolph M. Hammock banned Chyna’s mother – Tokyo Toni – from attending further proceedings after comments that she had made on an Instagram live stream.
The opening statements for both parties focussed on an incident on 15 December 2016, where the Kardashian-Jenners allege that Chyna violently attacked Rob and caused $100,000 in property damage to Kylie Jenner’s home. Chyna’s lawyer denied that there was a violent attack on Rob, but during Chyna’s testimony she admitted to damaging a gingerbread house and TV during the incident and claimed that she was joking both when she put a gun to his head and when she put a phone cord around his neck.
The trial continues and is expected to last up to ten days. It is understood that witnesses during the trial will also include the four Kardashian-Jenner defendants and Ryan Seacrest – an E! Network executive.
The Court of Appeal in California has declined to strike out a defamation claim brought by seven participants in the Netflix docuseries Afflicted. The series follows four sufferers of chronic illness and their family members on a ‘search for answers — and relief’.
The series garnered significant attention in 2018 when a group of activists, artists, filmmakers, physicians, patients and scientists penned an open letter to Netflix expressing concern about ‘its unethical treatment of its subjects’ and ‘questionable tactics’, including the decision to ‘advance a narrative [suggesting] these patients’ problems are primarily psychological’.
In August 2019, the participants in the series sued for defamation and invasion of privacy (amongst other causes of action), alleging that they were ‘duped’ into participating. They argue that the series ‘questioned the existence of chronic illnesses’ and portrayed them as ‘lazy, crazy, hypochondriacs and/or malingerers’.
The defendants moved to strike out the defamation and privacy claim, claiming it was barred by the personal release forms signed by the participants. However, the participants alleged that they had been pressured into signing the releases, told they would be cut from the series if they did not sign, assured that the releases were routine paperwork, or were too ill or tired when presented with the releases to understand them.
The trial court held that it was reasonable that a jury could find that the releases were obtained through a fraudulent misrepresentation about the purpose of the series. The Court of Appeal agreed – holding that the participants had met the required standard of ‘minimal merit’.
Misrepresentation is rarely raised as an issue by contributors to television content. This is normally because producers have ensured that they have provided them with accurate information about the programme and the nature of the contribution, in order to enable the individual to give informed consent. However, where there has been a misrepresentation, or where an individual has been put under pressure to consent, this may well enable contributors to argue that the release is invalid, and they can withdraw consent.
A photographer has brought a lawsuit against the model, actress, and author, Emily Ratajkowski, over a photo she shared on her Instagram story. Robert O’Neil sued Ratajkowski for copyright infringement after she shared a photo that he took of her. Ratajkowski contended that her use of the image constituted ‘fair use’, and that the photo did not have valid copyright protection. A private settlement was reached on 13 April, and Judge, Analisa Torres closed the case on that basis.
Both Ratajkowski and O’Neil had previously applied for summary judgment in September 2021 and what is known as a “split opinion” was handed down by the judge, who found that both motions were granted in part and denied in part. Ratajkowski argued, amongst other things, that in placing the words “mood forever” on the photograph, she had made ‘commentary and criticism’ of the ‘aggressive and harassing practice of paparazzi constantly following her’. The court concluded that there was a ‘genuine issue of material fact’ regarding whether Ratajkowski’s use of the work was transformative. Commenting that:
‘a reasonable observer could conclude the Instagram Photograph merely showcases Ratajkoswski’s clothes, location and post at that time – the same purpose, effectively, as the Photograph. On the other hand, it is possible a reasonable observer could also conclude that… the Instagram Photograph instead conveyed that Ratajkowski’s “mood forever” was her attempt to hide from the encouraging eyes of the paparazzi – a commentary on the Photograph.’
Traditionally, the courts have found paparazzi photographs to be ‘original’ due to creative choices made including the lighting, angle and focus of shots. In this case, in line with this this school of thought, the judge found that the photograph in question met the ‘extremely low’ standard for originality required for copyright protection. When considering the fair use defence, the court commented that Ratajkowski used ‘a greater portion of the photograph than was necessary for her purpose’, and that the photo was posted on an Instagram Story which was deleted after 24 hours, and it was therefore ‘much less…likely that someone might take the Photograph from the Instagram Account rather than licensing it from [O’Neil].’ This was the first time that the US courts considered the difference between posting on an Instagram Story, and the main Instagram feed.
Claims of this nature are not uncommon. O’Neil has previously brought actions against several celebrities for posting his photos on social media, including against Australian actor, Liam Hemsworth, and American supermodel, Gigi Hadid. Justin Bieber is facing a similar copyright infringement suit in which photographer, Josiah Kamau, alleges that Bieber posted Kamau’s photograph of himself and his wife, Hailey, crossing a road, to his Instagram account. Kamau has requested a jury trial. zoom-in will report on any developments.
Showtime Networks is facing a lawsuit by UFO Magazine Inc for breach of its trademarks and intellectual property rights, including for substantial ‘treble’ damages.
Showtime released the four-part docuseries UFO in 2021, which examines the ‘history of the [UFO] phenomenon through cultural and political touchpoints’. The series is the latest project of US filmmaker JJ Abrams, who is best known for producing the TV series Lost (2004-2010) and science fiction films such as Star Trek (2009), Star Wars: The Rise of Skywalker (2019) and Star Wars: The Last Jedi (2017).
UFO Magazine is the owner of US Trademarks for ‘UFO’ in two relevant categories – ‘Entertainment in the nature of a television series or motion picture film series’ and ‘Entertainment services’. Court documents claim that these trademarks are ‘incontestable’ and ‘very valuable intellectual properties’. The magazine says that it has been in discussion for the development of a UFO movie or television series for many years, including seeking collaborators for a movie as recently as September 2020.
The claim alleges that Showtime aired UFO without the licence, permission or authority of UFO Magazine – and that Showtime continued to stream the show after UFO Magazine wrote to it on two occasions about the ‘UFO’ trademark. As a result, the claim alleges that Showtime’s use of the trademark was a ‘continued, knowing and intentional’ infringement.
It is not yet known whether Showtime Networks or JJ Abrams deny the claim. At the time of writing, Showtime had not respond to a request for comment.
Titles for television programmes and series (and other editorial publications) do from time to time attract trade mark complaints i.e. where they contain registered trademarks. In most cases, complaints are easily rebuffed because the mark is not being used in true trade mark sense – use of the mark within the title is descriptive rather than as an indicator of the origin. This may well end up being the defence in this case – use of the mark UFO would be understood by consumers as descriptive of the series’ contents, rather than as an indicator of its origin.
Parties in the ‘Wagatha Christie’ defamation claim assembled last week for a pre-trial review. The claim concerns an Instagram post by Coleen Rooney in 2019, which the court last year ruled bore the defamatory allegation that Rebekah Vardy had ‘…abused her status as a trusted follower of [Rooney’s] personal Instagram account by secretly informing The Sun newspaper about [her] private posts and stories…’.
Rooney applied for access to communications between Rebekah Vardy (and her agent) and nine journalists at The Sun. The judge granted the order but limited it to Vardy’s communications with only one journalist – Mr Andy Halls. She held that these messages ‘may well support [Rooney’s] core case in relation to the disclosure of posts from her private Instagram account’. However, the judge agreed that Rooney’s application against the other journalists was a ‘fishing expedition’. A series of messages have been disclosed as part of the case, with some messages suggesting that Vardy and her agent, Caroline Watt, discussed journalists at The Sun.
Separately, the judge granted permission for Vardy to rely on witness summaries, rather than signed witness statements, by four journalists at The Sun. The witness summary for one of those journalists – Ms Amy Brookbanks – states that neither Vardy or her agent were the source of a 2017 article about Rooney entitled ‘LOOK ROO’S BACK – Wayne Rooney is back at home – and in bed with Coleen – as she shares snaps with pals celebrating Halloween together’.
The trial is listed for a 3-day hearing from 9 May 2022 with footballer, Wayne Rooney, set to give evidence. Rooney will rely on defences of truth and public interest.
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