25 Feb 25 February 2022
In this issue of zoom-in brief, pop icon Mariah Carey’s brother has most of his defamation claim against her thrown out; rock ‘n’ roll legend Tina Turner loses her German court battle with a tribute act; the Sussexes are at it again – Prince Harry sues Associated Newspapers over an article about his UK security arrangements; presenter, author and photographer Chris Packham brings defamation proceedings over claims he misled the public over a tiger rescue campaign; veteran broadcaster Andrew Neil makes good on his promise to sue Jennifer Arcuri for libel following a twitter spat; whilst a US Copyright Office ruling refuses rights for robots.
Defamation (US) - Carey v Carey – Judge dismisses majority of claims in defamation suit against Mariah Carey
The majority of claims have been dismissed in the defamation lawsuit brought against pop icon, Mariah Carey, by her brother, Morgan Carey.
The 2021 suit relates to statements made about him in Mariah’s 2020 best-selling memoir, The Meaning of Mariah Carey. The memoir includes details of Mariah’s dysfunctional childhood, familial tensions, and professional success. Morgan Carey filed the lawsuit in New York in March 2021 alleging ‘defamation and the intentional infliction of emotional distress’ as a result of the memoir.
The lawsuit centres on nine passages in the memoir which Morgan alleges to be defamatory and untrue, and which cover a range of topics including allegations that the relationship between Morgan and his father was a ‘war zone’ and that Morgan was abusive to their mother. The passages go on to say that Morgan: had been in a psychiatric centre, supplied ‘beautiful people with their powdered party favors’, extorted Mariah and took payment to murder someone (although never carried it out). Morgan was ultimately described in the book as a ‘sometimes drug-dealing, been-in-the-system, drunk ass brother’.
Rejecting seven of Morgan’s defamation claims including Mariah’s allegations of Morgan’s drunk and violent conduct and his involvement in a murder-for-hire plot, Judge Barbara Jaffe held that the allegations would not constitute defamation under New York law and that Morgan’s contention that he had not been contacted to verify any of the allegations against him prior to publication was ‘insufficient proof of actual malice’. Unlike in the UK, in the US those deemed ‘public figures’ wishing to sue for defamation must prove that a defendant acted with ‘actual malice’ in publishing defamatory material. Following the seminal US legal case of New York Times v Sullivan, a defendant must be shown to knowingly have published a falsehood or have had reckless disregard as to its truth or falsity.
Judge Jaffe considered that two passages were capable of being defamatory and could go on to be heard at trial – these being that Morgan had ‘been in the system’ and that he had supplied partygoers with ‘powdered party favors’, holding that these statements allege that Morgan ‘committed serious crimes’ and ‘had spent time in prison for a serious crime’.
The claims against the publishers, Macmillan and Andy Cohen Books, were also dismissed by Jaffe as, under New York law, Morgan is required to show that the publishers also acted with ‘actual malice’ in publishing the claims, something which he failed to do.
This lawsuit comes after the 51-year-old singing superstar’s sister, Alison Carey, sued her for $1.25m over the memoir. Alison Carey said that there was no evidence to substantiate claims that she gave 12 years old Mariah Valium, threw tea on her, and tried to ‘pimp her out’.
zoom-in will continue to report on any developments in the case.
IP (Ger) – Tina Turner loses court battle with tribute act
Legendary queen of Rock’n’Roll, Tina Turner, has lost her action against a tribute act who she sued for looking too much like her.
Dorothea ‘Coco’ Fletcher, a Tina Turner tribute act in her 30s, was sued by Turner as she claimed that Ms Fletcher looked so much like her in promotional posters that fans were likely to mistakenly think that Turner was involved in her show’s production.
Turner sought a ban on her name and likeness from posters, and, following the initial hearing, the posters for the show were changed.
Turner then lost on appeal as the Court ruled in Ms Fletcher’s favour, deciding that the risk of confusion did not outweigh Ms Fletcher’s right of artistic expression in relation to the posters.
The case has rumbled on for two years but yesterday, following Turner’s appeal to the Federal Court of Justice, the Court ruled in favour of Ms Fletcher, reiterating the Court of Appeal’s conclusion that Ms Fletcher’s posters did not indicate that Turner supported or participated in the tribute show and the posters contained neither an indication of this, nor were ambiguous as to Turner’s involvement.
In the UK, claims of this nature would need to be brought as a claim for ‘passing off’. This is an action which can be brought by someone who has a reputation and goodwill in a brand or product, where someone else deceives the public through a misrepresentation into thinking that their product is part of that brand or is endorsed by the brand, and which results in loss or damage to the brand.
Rihanna recently brought a passing off claim against Topshop over a T-shirt which featured a photograph of her, but was not connected or endorsed by her. Rihanna, who herself has a merchandising and endorsement brand, successfully argued that consumers would be confused into thinking that the T-shirt had been endorsed by her.
In TV production, passing off complaints sometimes arise in connection with programme titles, for example when a title includes words and phrases (including registered trade marks) closely associated with other programmes, films, or businesses, without consent.
Normally the use of such words and phrases in titles is defensible in law because the use is descriptive in nature – they are not being used in a trade mark sense ‘in relation to’ goods and services i.e. to denote trade origin. Nevertheless, legal advice should be sought, particularly when considering using registered trade marks within titles without consent, as complaints can be time-consuming and expensive to deal with, irrespective of whether a legal claim is ultimately pursued.
Defamation – Prince Harry issues defamation claim against Associated Newspapers
Prince Harry, the Duke of Sussex, has this week launched a libel action against Associated Newspapers Limited, publisher of newspapers including the Daily Mail and the Mail on Sunday. It is understood that the latest attack on the British tabloids by Prince Harry relates to an article in The Mail on Sunday which, on Sunday 20 February, published claims relating to Prince Harry’s litigation over his security arrangements in the UK, and alleging that he sought a far-reaching confidentiality order on paperwork and witness statements surrounding the matter.
Prince Harry is involved in litigation with the Home Office over the security arrangements in place whilst he is in the UK. The Prince is challenging the Home Office’s decision not to allow him to pay for police protection whilst he is in the UK. The Sussexes lost their taxpayer-funded police protection when they stepped back from royal duties.
As previously reported in zoom-in, Harry’s wife, Meghan, was successful in her privacy and copyright action against Associated Newspapers Limited which centred around the publication of parts of a handwritten letter sent by Meghan to her estranged father, Thomas Markle.
This new action marks the fifth lawsuit that the Duke and Duchess of Sussex have brought against the UK press in the last three years.
zoom-in will report on any developments as they arise.
Defamation - Court to determine meaning in Chris Packham tiger rescue claim
TV presenter Chris Packham has brought defamation proceedings over publications concerning his involvement with a charity of which he is a trustee, the Wildheart Trust.
A hearing in the proceedings took place on 15 February so that the Court could determine the meaning of the twenty-one online publications, including articles, videos and tweets, which Packham says falsely alleged that he misled the public into donating to the charity in order to rescue ‘broken’ tigers from circuses.
One publication complained of, on the website ‘Country Squire Magazine’, said Mr Packham and his partner had ‘clearly not been truthful with the British public’.
The website’s editor Dominic Wightman, writer Nigel Bean and a third defendant, Paul Read, are defending Packham’s claim, arguing the allegations were true and in the public interest.
Packham argued that readers would think the articles meant the broadcaster had dishonestly misled the public into donating to the charity for rescuing maltreated animals.
His barrister said in written submissions: ‘Readers can be left in no doubt as to the severity of what is being alleged against Mr Packham personally’. ‘The publications speak for themselves: they are littered with express references to lies, deceit and fraud and Mr Packham is presented as being at the very heart of the deception. They attack Mr Packham’s integrity and honesty, and allege serious criminality’. The barrister added that the articles went beyond legitimate debate about what it might mean to ‘rescue’ a circus animal and accused Mr Packham of ‘bare’ dishonesty.
Mr Wightman, speaking on behalf of the three defendants, self-described ‘defamation law virgins’, said they were ‘happy to robustly defend the truth of our articles and tweets.’ He claimed that the articles were a ‘long-term journalistic investigation’ and he was ‘standing on a mountain of facts’ about the allegations.
Written arguments on behalf of Mr Wightman and Mr Bean said the weblog’s audience were ‘mostly not balaclava owners or tank-chasing Clerkenwell lawyers, but proud Brexiteer countrysiders already accustomed to the claimant’s outlier stances and fibbing tendencies’.
In a statement made on his behalf, Mr Packham said the allegations of defrauding the public into donating funds to the Wildheart Trust had been independently investigated by the Fundraising Regulator, which found no breach of the fundraising code. The statement continued: ‘Despite these findings, the defendants have refused to remove numerous articles, tweets and videos from the public domain and continue to repeat these serious allegations of misconduct’. ‘Our client therefore regrets that he has no alternative but to pursue legal action in light of the extent of the publication and the serious harm caused to his reputation’.
The Judge will hand down a decision on meaning, an issue which is now typically determined at an early stage in defamation proceedings, at a later date.
Defamation – Andrew Neil sues Jennifer Arcuri following Twitter spat
Veteran broadcaster Andrew Neil has issued proceedings for defamation against Jennifer Arcuri, the American businesswoman who claims to have had a four-year affair with Boris Johnson while he was London Mayor.
The claim, in which Ms Arcuri appears on the Court file as a litigant-in-person, arises from a dispute on Twitter in December 2021, which began over a disagreement regarding the effectiveness of COVID-19 vaccines.
It escalated to a point where Neil accused Arcuri of ‘clear libel and defamation’ following her tweeting of allegations about his inclusion in an address book belonging to deceased paedophile financier Jeffrey Epstein. Arcuri alleged that Neil was on the ‘pedo elite train’.
The former GB News presenter, now hosting a show for Channel 4, said Arcuri’s comments were ‘evil lies’ and ‘vile and untrue accusations’.
Neil has previously said that he never met the convicted child sex offender and that he was listed in the deceased businessman’s ‘black book’ because he had met Ghislaine Maxwell, who was last year found guilty of recruiting and grooming teenage girls for Epstein, in New York in the 1990s. In tweets about Epstein, Neil told another Twitter user he had no connection to him: ‘I’ve never even met him, communicated with him, never mind visited any of his properties or been on his planes, cars, buses, helicopters, ponies’ he said. ‘Now what is it you don’t understand about piss off. And apologise before you do, please, piss off.’
Neil wrote on Twitter that he had decided to take legal action ‘not just to hold Arcuri, who I’ve never met and have no interest in, to account but, more important, to establish that the twitterati can’t just promulgate evil lies without consequences. If you think anonymity will protect you, you’re in for a big surprise.’
In a tweet at the end of December, Neil told Arcuri: ‘My legal team has prepared a massive case against you and we’ll be seeking exemplary damages. Papers will be served in UK and US. I know you’ve been keeping your location private. But tell me, what’s it like in Panama City, Florida this time of year?’
Arcuri responded: ‘This guy is going to give himself a heart attack.’
Arcuri has taken down some of the tweets, although that is unlikely to do any more than mitigate damages at this stage.
The principal difficulty Neil is facing is that Arcuri is based in the US, where it is potentially difficult to enforce any English defamation judgment.
Copyright (US) – Robots’ rights refused! AI-created artwork cannot be copyright protected says US Copyright Office.
The Review Board of the United States Copyright Office has declined Dr Steven Thaler’s second request to register an artwork titled ‘A Recent Entrance to Paradise’, which was created by artificial intelligence.
Thaler, scientist and creator of AI system the Creativity Machine and the founder and CEO of Imagination Engines, first tried to register the work in 2018, saying that it ‘was autonomously created by a computer algorithm running on a machine’.
The work is the system’s visualisation of a simulated brain’s near-death experience, depicting a leafy abandoned railway arch interspersed with purple ripples and an accompanying narrative.
The Review Board referred to well-established principles of copyright law to the effect that it only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the [human] mind’ and that a work which is registered must be created by a human being.
It accordingly required Thaler either to provide evidence that the work is the product of human authorship or convince it to depart from a century of copyright jurisprudence, but said that he had done neither.
The Review Board cited as ‘instructive’ a decision from England where justices described an ‘author’ as the ‘person’ who was ‘the cause of the picture which is produced’ and ‘the man’ who creates or gives effect to the idea in the work, and also said it was compelled to follow Supreme Court precedent, which makes human authorship an essential element of copyright protection.
It also noted that court decisions were reflected in the US Copyright Office’s guidance, which provides examples of works lacking human authorship such as ‘a photograph taken by a monkey’ and ‘an application for a song naming the Holy Spirit as the author’.
The reference to a photograph taken by a monkey is to an unsuccessful attempt by British photographer David Slater to bring a copyright infringement claim over a photo taken by a monkey on a camera which he left unattended during a 2011 trip to Indonesia.
The Review Board recognised that while a United States court has not yet considered whether artificial intelligence can be the author for copyright purposes, the courts have been consistent in finding that non-human expression is ineligible for copyright protection.
Thaler had also sought to register the computer-generated work as a ‘work-for-hire to the owner of the Creativity Machine’, but the Review Board ruled that as the Creativity Machine cannot enter into legally binding contracts, this did not apply.
Thaler’s application appears to have been an attempt to shift the boundaries of copyright protection and establish the value of art derived from AI in a general sense, rather than a serious application to protect valuable intellectual property.
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