In this issue of zoom-in brief, Netflix and Irish Rover Entertainment settle a copyright suit over supernatural drama, Stranger Things; US judge rules that copyright cannot exist in AI generated art; Ofcom rejects a privacy complaint about Channel 4’s24 Hours in Police Custody; a California court rules that historic claims of sexual abuse against production companies owned by Michael Jackson can proceed; whilst in Italy, Prime Minister Giorgia Meloni brings defamation proceedings against Placebo band member Brian Molko over comments he allegedly made about her at a concert.

Irish Rover Entertainment has agreed to end its copyright lawsuit against Netflix over its supernatural drama Stranger Things.

The claim, which was first brought in 2020, alleged that Netflix and the creators of Stranger Things had exploited elements of a copyrighted screenplay – Totem – in the hit show. It argued that there were “substantial similarities” between Stranger Things and Totem, including plot, sequence of events, theme, characters, mood, pace and dialogue and alleged that no licence was obtained from the author of the screenplay.

The Defendants filed a motion to dismiss the complaint in 2021, arguing that there was no substantial similarity between the screenplay and Stranger Things, and that various elements of the Plaintiff’s works were unprotectible. However the motion was denied by a judge of the US District Court and a trial was reportedly due to start in September.

It has now been announced that the claim has been settled. While the terms of the full settlement are not known, the order filed in the US District Court indicates that the matter was dismissed in its entirety with prejudice (meaning that it cannot be refiled), and that each party will bear its own attorney’s fees and costs. Netflix commented that the lawsuit had been “completely meritless”, echoing its earlier comment in 2020 that, “The Duffer brothers had never heard of him or his unpublished script until he began threatening to sue them”.

A US District Judge has dismissed a bid to recognise copyright in AI-generated art, cementing the divide between the UK and US approaches to this issue.

Mr Stephen Thaler challenged a decision of the US Copyright Office to deny registration of copyright to a piece of visual art created by his computer system the “Creativity Machine”. The US Copyright Office considered that the work lacked human authorship, which is a requisite for copyright protection. Mr Thaler sought judicial review of this decision.

The judge concluded that the US Copyright Office did not err in denying the application for copyright registration presented by Mr Thaler because US copyright law only protects works of human creation. Although copyright law was “designed to adapt with the times”, the judge found that “human authorship is a bedrock requirement of copyright”. The judge considered that this was supported by the wording of the Copyright Act of 1976, which requires every work to have an author: a copyrighted work must be “fixed in any tangible medium of expression”, and fixing must be done “under the authority of the author”.

The decision presents a stark contrast to the position in the UK, which recognises copyright in “computer generated works”. These are defined in section 178 of the Copyright, Designs and Patents Act 1988 as a work “generated by computer in circumstances such that there is no human author of the work”. In such cases, the author is deemed to be “the person by whom the arrangements necessary for the creation of the work are undertaken”: see section 9(3). The authors of the leading copyright textbook Copinger and Skone James on Copyright suggest that a human author can often be found in a process which is highly computer-assisted but recognise that there will be a class of works where this is not possible.

According to the Intellectual Property Office, the UK is one of only a “handful” of countries which protects AI-generated works under copyright laws. The protection of computer-generated works in the UK has interesting implications in certain areas of copyright law. For example, the moral right to be identified as the author of a work conferred by section 77 does not apply to a computer-generated work. Further, where works are computer-generated, the usual rule as to duration of copyright (70 years from the death of the author) does not apply, and copyright expires 50 years after the calendar year in which the work was made.

Ofcom has rejected a privacy complaint about 24 Hours in Police Custody, a Channel 4 series about police detectives in Bedfordshire and Cambridgeshire which covered the investigation into the 2018 murder of Sam Mechelewski. Mr Jordan Shepherd and his co-accused were ultimately convicted of the crime.

The programme featured footage of Mr Shepherd at the police station, including footage of what he argued was a strip search showing his bare torso, and footage of him talking to the programme makers in his police cell. Shepherd complained that the programme infringed his right to privacy as he had refused to participate in filming but was pressured to do so by police.

Channel 4 denied this, arguing that there were notices about filming around the police station, and that Mr Shepherd had provided verbal consent as it had not been possible to obtain written consent (a pen could not be brought into the custody suite for safety reasons). Channel 4 specifically denied filming a “strip search” and argued that it was actually a “body mapping” procedure which is routine in violent crimes.

Ofcom held that Mr Shepherd did have a legitimate expectation of privacy in relation to the filming and broadcast of footage, finding that the situations in which he was filmed could reasonably be regarded as potentially sensitive. In particular, the body mapping procedure was “likely to be a situation in which Mr Shepherd might have been feeling vulnerable”. Ofcom concluded that the programme makers had not demonstrated that Mr Shepherd had given informed consent to being filmed and interviewed, noting that Ofcom was not given a copy of the production log and the unedited footage did not indicate whether verbal consent was obtained.

However, Ofcom ultimately dismissed the complaint because it concluded that the infringements of Mr Shepherd’s privacy werewarranted. Ofcom accepted Channel 4’s argument that there was a significant public interest in the filming of Mr Shepherd in this context as a suspect in the murder, of which he was later convicted in open court. In short, Channel 4’s right to freedom of expression and the audience’s right to receive information and ideas without undue interference outweighed Mr Shepherd’s right to privacy.

Whilst this was a regulatory decision, Ofcom’s approach is consistent with the two-stage test applied by courts to claims for misuse of private information, namely: (1) whether there is a reasonable expectation of privacy in the particular information, and (2) if yes, a balancing of the competing rights that are engaged.

A California appeals court has ruled that two claimants can resume their sexual abuse lawsuits for damages against companies that were owned by deceased popstar, Michael Jackson.

The two men, who are now adults, allege that they were sexually abused by Jackson whilst they were children – and Jackson’s production companies MJJ Productions Inc and MJJ Ventures Inc bear responsibility for the abuse.

The claims were initially dismissed in 2017 because they exceeded California’s statute of limitations for sex abuse claims. However, the claims were reignited after California enacted a law in 2020 which extended the statute of limitations for reporting childhood sexual assault. Similar reforms have also been considered in the UK. In its 2022 Report, the Independent Inquiry into Child Sexual Abuse recommended that the limitation period should be removed in all cases involving child sexual abuse, other than those that have been dismissed or settled. Currently, the limitation period is three years from either the date when the injury occurred or the date of knowledge of the individual claimant, but this is subject to a discretionary extension. The Inquiry states in its report that the “overwhelming majority” of claims are not brought within three years, so the “starting point” is that claimants must apply to the court to allow them to proceed.

This week, California’s Second District Court of Appeal ruled that claims against MJJ Productions Inc and MJJ Ventures Inc can proceed to trial. The key issue for determination was whether the claim could proceed against the companies, who argued that they had “no ability—and thus no legal duty—to control or supervise Jackson”.

The court rejected the companies’ arguments, finding that: “a corporation that facilitates the sexual abuse of children by one of its employees is not excused from an affirmative duty to protect those children merely because it is solely owned by the perpetrator of the abuse.” The court added that any director, employee or agent of the companies who knew of or suspected child abuse could have done something to protect the children’s welfare, such as issuing warnings, going to the police, confronting Jackson, establishing codes of conduct, or barring adults from being alone with youth.

Mr Jackson’s estate has denied that he abused the boys. In 2005, Jackson was acquitted by a Californian jury of charges of child molestation.

Italy’s Prime Minister Giorgia Meloni has commenced defamation proceedings against Brian Molko, singer of the band Placebo, over comments he allegedly made at a concert in July.

Molko reportedly called Meloni a “racist”, “piece of shit” and “fascist” while speaking on stage at the Sonic Park music festival in Turin.

Prosecutors in Turin are also reported to be investigating the incident for “defamation of [public] institutions”. In Italy, it is an offence under the Criminal Code to defame the Italian republic, which attracts a fine of up to 5,000 Euros. Defamation is also punishable as a criminal offence under Article 595 of the Criminal Code, attracting a penalty of imprisonment of up to three years if committed publicly.

The International Press Institute has called upon Italy to reform its defamation laws “in line with international freedom of expression standards”. Whilst certain reforms were proposed in September 2022, the freedom of expression group, Article 19, has raised concerns that the proposals are not in line with international freedom of expression standards – for example by retaining criminal defamation. By contrast, criminal defamation was abolished in the UK in 2009 under section 73 of the Coroners and Justice Act.

This is not the first time Meloni has brought defamation proceedings against critics. In 2022 she sued journalist Roberto Saviano after he called her a “bastard” because of comments she made following the drowning of a migrant’s baby in the Mediterranean Sea. A hearing in that claim took place in June this year and has been adjourned until October. The same year, Meloni also sued the editors of the Domani newspaper over an article about procurement of face masks during the coronavirus pandemic. A trial in that case is due to start in July 2024.

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.