In this issue of zoom-in brief, Nicki Minaj wins part one of her copyright battle with singer Tracy Chapman; Ofcom rejects Can’t Pay? We’ll Take It Away! complaints; and prominent US attorney Alan Dershowitz sues CNN.

A judge has sided with Nicki Minaj over one aspect of her copyright dispute with Tracy Chapman finding that taking and using samples of Chapman’s song Baby Can I Hold You in the studio, to create a new track, did not amount to copyright infringement because it was “fair use”.

As previously reported in zoom-in, Minaj sampled the song, from Chapman’s self-titled debut album, for her track Sorry, which also featured New York rapper Nas.

After recording the song, Minaj approached Chapman for permission to use the sample, saying her track had used “interpolations” from Baby Can I Hold You.

Chapman refused, leading Minaj to tweet “Sis said no”.

Minaj’s album Queen was released without the song, but it was later given to a New York radio dj, DJ Flex, who then played it on air, leading to rips appearing online.

Chapman claimed her lyrics and vocal melody comprised approximately half of Minaj’s work, and were easily recognisable as Chapman’s, with the works being “strikingly similar”.

Chapman sued for copyright infringement both in relation to the creation of Minaj’s song in the studio, and its later distribution.  This ruling sides with Minaj over the creation element, but Chapman’s claim regarding distribution of the song will go to a jury trial.

Arguing her use of samples of Chapman’s work amounted to fair use, Minaj relied on the purpose of the use i.e. to experiment with the artist’s vision and create a form that could then be submitted to the rights holder (Chapman) for approval.

In analysing the fair use defence, the Judge referred to this purpose, and the fact that “artists usually experiment with works before seeking licenses from rights holders, and rights holders typically ask to see a proposed work before approving a license”.

The Judge found that: “…A ruling uprooting these common practices would limit creativity and stifle innovation within the music industry. This is contrary to Copyright Law’s primary goal of promoting the arts for the public good. This factor thus favors a finding of fair use.”

American law requires the court to look at four factors when assessing fair use: the purpose and character of the use; the nature of the work; the amount and substantiality of the portion used in relation to the work as a whole; and the effect of the use upon the potential market for or value of the work.

English law in this area is based around the principle of “fair dealing” and the requirements are primarily set out in legislation rather than in case law.

Although there are obvious similarities, fair dealing is generally a more limited defence.  Rather than courts having to consider the four factors outlined above, in the UK, courts must determine whether the use complies with the provisions of specific statutory defences such as fair dealing for the purposes of criticism or review; or fair dealing for the purposes of reporting current events.

Ofcom has found that two episodes of Channel 5’s Can’t Pay? We’ll Take It Away! did not breach the Code because there was an overriding public interest in making and broadcasting the programmes.

The first complaint came from Mr S who was filmed at his workplace as he spoke with two High Court Enforcement Agents (“HCEAs”) who were enforcing a Writ of Control against a company called Residential Freeholds Limited.

The majority of the footage of Mr S in the programme was recorded by body cameras worn by the HCEAs but owned by the programme makers.

Mr S claimed his privacy was unwarrantably infringed by the making and broadcast of the programme because he was shown without his consent and had been unaware the cameras were present.

Ofcom found that the body camera footage had been obtained surreptitiously even though the cameras had been worn openly. However,this did not automatically mean there had been an unwarranted infringement of privacy.

Ofcom acknowledged that the public interest was engaged in this case because the programme showed the HCEAs executing their official duties, including the interactions they routinely engage in, and the difficulties they face.

Ofcom also said it did not consider the level of the intrusion was significant. Although footage of Mr S was obtained within a workplace that was not otherwise accessible to the public, it did not reveal anything private or sensitive about Mr S. As a result, although Mr S did have a legitimate expectation of privacy both in connection with the obtaining of the footage and in the subsequent broadcast of it, that did not outweigh the broadcaster’s right to freedom of expression and the public interest.

In another episode, albeit with a different set of facts, Ofcom sided again with the broadcaster rather than the complainant.

In that case, the complainant, Mr O, claimed his privacy had been infringed because he was filmed without his consent while being evicted from his home.

Ofcom considered that the existence of a High Court Writ is a matter of public record and was not, therefore, information about which Mr O had a legitimate expectation of privacy. However, Ofcom said that information captured by the filming of Mr O and his wife while in their home went beyond information which might otherwise have been in the public domain as a consequence of the court enforcement process.

Ofcom concluded, on balance, that there was an overriding public interest in the broadcaster being able to show Mr O in the circumstances because his interactions with the HCEAs were intrinsic to the public interest in showing the activities of the HCEAs. Accordingly, Ofcom found that there was no unwarranted infringement of Mr O’s privacy in connection with the obtaining of material included in the programme or as broadcast.

These decisions are a welcome reminder that even when a person’s privacy rights are engaged and they do not consent to being filmed, there is still scope to collect and use footage in such cases in programmes that feature the work of HCEAs.

Prominent American civil liberties lawyer Alan Dershowitz is suing CNN alleging that it defamed him as a result of the way it edited a comment that he made during Donald Trump’s impeachment trial.

He claims the broadcaster’s presentation of his comment made it falsely appear that he had “lost his mind” and is seeking a whopping $300 million in damages.

Dershowitz, 82, who has acted for celebrity clients including Mike Tyson, O.J. Simpson, and Harvey Weinstein, was part of the team defending Trump during the recent Senate impeachment trial which ended with Trump’s acquittal.

The former Harvard Law School professor’s claim focuses on comments he made in response to a question by Senator Ted Cruz, in relation to whether an allegation that Trump wanted to trade Ukrainian political favours in return for US military aid could be grounds for finding him guilty.

Dershowitz responded, “the only thing that would make a quid pro quo unlawful is if the quo were somehow illegal” – and providing arms to Ukraine wasn’t illegal.

Mr Dershowitz said CNN reported only his subsequent comment:

“Every public official that I know believes that his election is in the public interest and, mostly, they are right, your election is in the public interest, and if the president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

Dershowitz argues that by playing only the second segment “over and over again” without the first part, CNN made it appear he was arguing a president could avoid impeachment for illegal acts, as long as he believed his re-election was in the nation’s best interest.

That proposition is “preposterous and foolish on its face,” Dershowitz argues in his lawsuit.

“That was the point: to falsely paint Professor Dershowitz as a constitutional scholar and intellect who has lost his mind,” the lawsuit says.

Dershowitz’s claim, unusually brought over a report of proceedings in a national legislature, illustrates the dangers of selective editing, which could be argued to lead to a misrepresentation of the person speaking, or the nature of their statement.

US defamation law requires a claimant who is a public figure to show “actual malice”, i.e. that the publisher made the statement with knowledge that it was false or with reckless disregard of whether it was false or not, which makes bringing a claim much more challenging for a high profile person than in this country.

Dershowitz is seeking a jury trial, illustrating another key point of difference – that, unlike in England and Wales, jury trials for defamation are still common in the US.

Jury trials are often more challenging for defendants because a claimant’s personality, and public profile, may influence the jury’s decision.

CNN are yet to comment.

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