27 Jun 28 June 2022
In this issue of zoom-in brief, Kardashian-Jenners seek costs over failed Blac Chyna lawsuit; Transatlantic jurisdiction battle emerges in Jimi Hendrix Experience rights dispute; and Ed Sheeran awarded costs of almost £1m after success in “Shape of You” copyright claim
US – Defamation – Keeping up with the payments: Kardashian-Jenners seek costs over failed Blac Chyna lawsuit
In court papers filed last week, Kim Kardashian, Kris Jenner, Khloe Kardashian and Kylie Jenner have requested that Blac Chyna pay their legal fees following her failed defamation and contract interference claim against them.
Chyna, whose real name is Angela White, sought $100m in damages over allegations made by the ‘KarJenners’ that, in 2016, she violently attacked their brother (and Chyna’s then-fiancé) Rob Kardashian. She claimed that the remarks caused her short-lived E! reality TV show “Rob & Chyna” to be cancelled and resulted in a loss of future earning capacity. zoom-in previously reported on the proceedings, here.
The two-week trial included evidence from the defendant KarJenners and E! network producers. The family’s witnesses testified that the real reason for the reality show’s cancellation was the breakdown of Chyna and Rob Kardashian’s relationship, on which the show was premised.
The defamation case against Kim Kardashian was dismissed by the judge as no defamatory statement made by her was put before the court. The jury then found, in respect of the remaining allegations, that while the KarJenners had reasonable grounds to believe the statements made, even if they later turned out to be false, they had acted in bad faith and were not justified in telling the executives and producers of “Rob & Chyna” that Chyna abused Rob Kardashian. However, they also found that the remarks had no substantial effect on Chyna’s contract or the decision to axe the show, and she was awarded no damages.
The legal fees (which exclude attorney’s fees) are said to amount to over $390,000 and include $180,000 in exhibits, models, enlargements and photocopies and over $20,000 for the court reporter.
Following the verdict, Chyna’s lawyer criticised the “exorbitant” litigation costs and vowed to appeal. She also accused the judge – Judge Gregory Alarcon – of being biased (a claim refuted by the Defendants’ attorney, who called for sanctions over the remarks).
It was also recently announced that Rob Kardashian and Blac Chyna have settled the ‘revenge porn’ lawsuit which arose following Mr Kardashian’s publication of pornographic images of Chyna on social media.
Copyright – Transatlantic jurisdiction battle emerges in Jimi Hendrix Experience rights dispute
The High Court is to determine whether the ongoing rights dispute over the Jimi Hendrix Experience catalogue can be heard in London, or should be stayed until the determination of a parallel dispute in the USA.
The claim concerns the rights to the Jimi Hendrix Experience recordings, which the estates of band members Noel Redding and Mitch Mitchell argue are being infringed by Sony Music and the Jimi Hendrix estate.
Sony and companies representing the Hendrix estate claim that, in the 1970s following Hendrix’s death, Redding and Mitchell signed a contract which included “broad general releases” and agreements not to sue and handed over their rights to any royalties for “significant monetary consideration”.
Redding and Mitchell’s estates both dispute the characterisation of the agreement and argue that it excludes streaming and digital media rights, which were unforeseeable at the time. Further, they deny that the contract applies to Sony, who was not a party. They seek millions in unpaid royalties.
UK companies representing the Redding and Mitchell’s estates (“the Redding and Mitchell companies”) initially sent a pre-action letter to Sony (the exclusive licensee of Hendrix’s music) in December 2021, which triggered pre-emptive proceedings being issued in January 2022 by Sony and the Hendrix estate in the Manhattan Federal Court for a declaration that they did not infringe the rights.
The Redding and Mitchell companies then issued proceedings in the UK on 4 February, seeking reverse declarations and damages. They have also applied to strike out the US claim on the basis of jurisdiction.
Counsel representing Sony and the Hendrix estate, told the High Court on 17 June that the UK proceedings should be stayed whilst the claim is progressed in the US, as it is the most appropriate forum for the dispute. He relied upon the fact that the contract at the centre of the dispute was signed in the US and that it was the court first seised of the dispute.
The Redding and Mitchell companies argue that the UK is most appropriate forum for the claim, because it is a claim against English companies by the estates of English musicians in respect of a UK-based infringement of rights assigned under UK copyright law.
zoom-in will continue to follow the case and will report on the judgment once it is handed down.
Sami Chokri and Ross O’Donoghue are facing a hefty bill following their failed copyright claim against Ed Sheeran and his co-writers over the song “Shape of You”.
In 2018, Sheeran and his co-writers’ royalty payments were suspended by the Performing Rights Society after Chokri and O’Donoghue sought to be credited as co-writers of the song. Sheeran, the other original co-writers and the copyright owners (“the Claimants”) then brought a claim in the High Court seeking a declaration that they did not infringe the copyright. Chokri and O’Donoghue counterclaimed, alleging that Sheeran plagiarised the eight-bar hook with the repeated phrase “Oh I” from the chorus of their 2015 song “Oh Why”.
In a detailed and technical judgment handed down in April, Mr Justice Zacaroli ruled in favour of the Claimants, finding that Sheeran “neither consciously nor subconsciously” copied the song. zoom-in previously covered the case, here.
Last week counsel acting for O’Donoghue and Chokri (who performs under the name “Sami Switch”), told the High Court that the Claimants should cover their own legal fees due to their failure to provide documents, their conduct during the litigation and the subsequent impact of these failings on his clients’ approach to the case.
However, this failed to persuade Mr Justice Zacaroli who, applying the general rule as laid out in CPR 44.2(2)(a) that the loser pays the winner’s costs in civil claims, ordered them to pay the Claimants’ legal fees.
Notably, the Judge dismissed the argument that there was a failure to provide a pre-action protocol compliant letter of claim, as the Claimants had “done as much if not more than the defendants” (who were asserting the positive infringement) to set out their position. An interim payment was ordered of £916,200 with the fee to be assessed at a later date.
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