29 Oct 29 October 2021
In this issue of zoom-in brief, legendary film producer/director Spike Lee and Nate Parker are sued for copyright infringement over American Skin; art pop pranksters, the KLF, attempt to block release of a documentary on copyright grounds despite previously literally burning their royalties; whilst the European Court of Human Rights has awarded damages to a woman over the impact on her of newspaper coverage of her dead son, a decision with potentially far-reaching consequences for the media.
Spike Lee and Nate Parker are facing a copyright infringement claim brought by two independent film-makers over Parker’s 2019 film “American Skin”.
Brothers Selton and Langston Shaw say that “American Skin”, which follows a Marine veteran who takes matters into his own hands after his son is killed by a police officer, copied elements of the film from their screenplay “A Routine Stop”.
“American Skin” premiered at the 2019 Venice Film Festival, where it was billed as “A Spike Lee Presentation” and received a standing ovation, and has subsequently been released in cinemas and on streaming services.
The Shaw brothers claim that Parker and Lee took the idea for the film from their 2017 screenplay, pointing to the fact that both works focus on police violence against the black community, and alleging that Lee and Parker copied major themes, characters, story lines, the logline and other elements from “A Routine Stop”.
The brothers rely in their complaint on the fact that they submitted their screenplay to the TV One Screenplay competition, a contest organised with and supported by the American Black Film Festival.
It did not win the competition, but was circulated to a group of industry professionals who served as judges.
The complaint points to what it says are “uncanny” similarities between the works, including that: “Among other things, in both A Routine Stop and American Skin, the main character, with a group of his friends, kidnaps and puts on a “show trial” of the white police officer involved in the shooting”.
The Shaw brothers said: “We put our blood, sweat and tears into turning a tragic reality of society into a screenplay that would resonate with audiences, only to see someone else earn acclaim and profit from our work”.
“We filed this lawsuit to get back what was wrongfully taken from us.”
Their lawyer claimed that the similarities between the works were not a coincidence, but an “unlawful and deliberate attempt to usurp the Shaw brothers’ time, money and efforts to shine a spotlight on injustice.”
Neither Lee, a Hollywood legend whose “BlacKkKlansman” won the Grand Prix at Cannes in 2018, nor Parker, have yet responded to the claim.
Although complaints of this kind are not unusual, copyright infringement claims based on alleged lifting of plot and themes from existing works are difficult to prove – a 2006 claim against Dan Brown over his use of elements of an earlier work in The Da Vinci Code was dismissed by an English Court in 2006.
Warner Chappell, music publisher of art pop pranksters the KLF, has attempted to block the screening of a documentary about the group which was shown at a film festival in Texas.
The documentary, by director Chris Atkins, who was behind the film Starsuckers, covers the work of KLF members Bill Drummond and Jimmy Cauty during the late 1980s and early 1990s.
They went to number one in 1988 as the Timelords with the Dr Who theme-sampling “Doctorin’ the Tardis” and then went to on to release a series of sample-heavy international hit singles as the KLF on their own KLF Communications Label, including “What Time is Love” and “3am Eternal”.
The KLF were the biggest selling singles act in the world in 1991, but by 1992 had retired from the music industry and deleted their back catalogue, which only began to appear on streaming services for the first time (with many samples removed) in early 2021.
In 1994, as the K Foundation, Drummond and Cauty burned one million pounds in cash on the Scottish Island of Jura, which were the remaining royalties from their music career.
The KLF’s short lived but influential career in the music industry offers a rich seam of material for a documentary, but the duo seem to be very much against it.
In an interview in 2016, Cauty said, “We don’t want to do it – it’s like an archaeological dig through the past. We’re doing other things that we think are much more interesting”
This opposition could explain why lawyers acting on behalf of Drummond and the KLF attempted to block the release of the unauthorised documentary on copyright grounds, saying that they would take all measures to protect the group’s intellectual property, including legal proceedings.
Atkins is relying on the fair dealing exemption from copyright protection which allows material to be used for the purposes of criticism or review.
The Guardian reported Atkins telling them that, unusually, this applies to his film because he is using archive audio recordings of Drummond and Cauty critiquing their own work.
The KLF’s publishers, Warner Chappell, have explained their opposition:
“We always champion the value of our songwriters’ music,” they said.
“Feature-length documentaries made for profit which make extensive use of an artist’s music are not covered by the fair dealing exception to copyright law, which is why we took action in this case.”
This stance seems richly ironic, where the band’s name has sometimes been said to stand for “Kopyright Liberation Front” and their pop career was based on the most liberal use of other artists’ material.
Unauthorised use of ABBA’s “Dancing Queen” in a 1987 song “The Queen and I”, which Cauty later claimed was “artistically justified”, led to a legal dispute with ABBA and the forcible withdrawal from sale of the album containing the song.
After failing to meet up with ABBA on a trip to Sweden, Drummond and Cauty disposed of the remaining copies of the album by burning most of them in a field and throwing the rest into the North Sea on the ferry ride home.
In an echo of Cauty’s own comments on his use of ABBA’s work, Atkins points to the artistic value of his film, saying: “It’s the definitive telling of the greatest music and art story of the 20th century that’s never really been told, because the two protagonists won’t talk about it.”
Given the affectionate nature of the film and the wider background, litigation seems unlikely, but any dispute would be an interesting test of the limits of the fair dealing exemptions which many film-makers rely on.
The European Court of Human Rights has awarded damages to a woman who brought a claim over the distressing impact on her of newspaper coverage of her dead son, a decision which may have far-reaching consequences for the media.
The award of €5000 was compensation for “mental suffering and feelings of injustice” caused by the publishers of three newspapers, which reported in lurid terms on a deceased Roman Catholic priest’s conviction for sexual abuse, and a possible link to his supposed suicide.
The applicant, a Slovakian woman, was the dead man’s mother, and brought proceedings against the newspapers, seeking post-mortem protection of her late son’s personal integrity, as well as her own, under the applicable provisions of the Slovakian civil code.
The priest had been convicted, in 1999, of having attempted to have non-consensual oral sex with a minor boy and, in 2002, of having had consensual oral sex with an adult man in a public place, but those convictions had become spent under Slovakian law in 2001 and 2003, ahead of his death in 2006.
His mother argued at first instance that the account of the basis of the convictions was inaccurate and that in any event both had become spent.
She complained that the allegations in the articles did not correspond to the criminal courts’ findings and contained “disproportionate value judgments” characterising her son as a criminal and his acts as “disgusting paedophile orgies”, the aim of which, she said, was to cause a sensation and increase the newspapers’ sale figures.
The applicant claimed that those allegations and judgments interfered with both her late son’s and her own privacy rights and pointed to the fact that she had faced adverse reactions and questions from her neighbours and people who had known her son.
This significantly affected her period of mourning and contributed to a deterioration in her health.
At the first instance hearing, the journalists responsible for the articles said that they could not remember concrete sources or details, and that they had essentially based the articles on information on the internet and other media, on the criminal file and on their personal communications with sources who had given their opinions.
The court ordered the defendants to publish an apology to the applicant but dismissed her financial claims; both parties then appealed and the case eventually made its way to the ECHR in Strasbourg.
In its decision, the ECHR took into account the timing of the articles in question, which it noted were published several years after the applicant’s son’s criminal convictions but also after those convictions had become spent.
The Court determined that the domestic courts, “failed to carry out a balancing exercise between the applicant’s right to private life and the newspaper publishers’ freedom of expression in conformity with the criteria laid down in the Court’s case-law”.
It observed that, “the frivolous and unverified statements about the applicant’s son’s private life must be taken to have gone beyond the limits of responsible journalism” and accepted that, “the distorted facts and the expressions used must have been upsetting for the applicant and that they were of such a nature as to be capable of considerably and directly affecting her feelings as a mother of a deceased son as well as her private life and identity, the reputation of her deceased son being a part and parcel thereof”.
An earlier decision by the Court had recognised that in principle the reputation of a deceased member of a person’s family may, in certain circumstances, affect that person’s private life and identity, and thus come within the scope of Article 8, but this case goes a step further than any previous ruling, in awarding damages to the person whose private life was allegedly affected.
In the UK, there are limited circumstances in which media coverage of a dead person can give rise to a complaint, for example the IPSO Editor’s Code protects against intrusion into grief or shock.
However, it has long been a fundamental principle of media law, familiar to journalists and lawyers alike, that you cannot libel the dead.
This ruling, which has already attracted criticism in some quarters, appears to pave the way for legal complaints in this country by the relatives of the deceased, because UK courts are required to take account of the ECHR’s decisions under the terms of the Human Rights Act 1998.
While this is not a strict requirement and has long been the subject of Conservative party plans to reform the relationship between the UK courts and Strasbourg, which have yet to be realised, ECHR case law has been influential in this country, particularly in the field of privacy rights.
If this decision is followed by the UK courts, it will have significant practical repercussions, particularly in fields such as biography and historical documentary-making.
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