02 Aug 3 August 2022
In this issue of zoom-in brief, Cardi B is expected to give evidence in a claim involving a photo on her 2016 mixtape cover, Coleen Rooney is victorious in the highly publicised libel case brought against her by Rebekah Vardy, Ofcom finds the BBC breached impartiality rules in an interview with former leader of the Scottish Conservatives, Ruth Davidson; whilst in the US, sculptor Jeff Koons fails to have copyright infringement claim against him dismissed.
US – Cardi B sued by model over use of his likeness
Rapper Cardi B is being sued by a model over the cover of her 2016 mixtape Gangsta Bitch Music Vol 1. The cover features a photograph of Cardi B drinking from a bottle of beer, whilst a man with a distinctive back tattoo appears to be performing oral sex on her. The model who posed for the cover is not Kevin Brophy Jr, who is bringing the lawsuit, but the tattoo which appears on the back of the model is that of Mr Brophy. Mr Brophy is suing over the use of his likeness. He also claims that his image has been used in “a misleading, offensive, humiliating and provocatively sexual way”, that he has suffered distress and humiliation, and would not have consented to his likeness being used to depict sexual activity with Cardi B.
The designer of the album cover, who was paid $50, says that he photoshopped the tattoo onto the cover image after doing a Google search for back tattoos. Cardi B’s lawyers claim the way the tattoo was used constitutes a “transformative fair use”. In a previous ruling a judge found that this could not be decided at a preliminary stage and the case will go to trial. Although some changes were made, a jury could find that these were not sufficiently transformative. “Most significantly, defining elements including the tiger and snake remain virtually unchanged,” the decision said. “Under these circumstances, a jury will have to decide the merits of Defendants’ defence.”
However, at a pre-trial hearing, the judge expressed the view that Mr Brophy’s estimate of the damages he would be owed if successful was “pure fantasy”.
Cardi B’s lawyers also say that it is clear Mr Brophy is not in the cover photo as the model is of a different ethnicity, and that, in any event, the cover image does not portray actual sexual activity and that the “use of his tattoo design did not show plaintiff in a false light or would be highly offensive to a reasonable person in plaintiff’s position.”
The trial of the case was expected to start this month after settlement negotiations failed, but has been postponed due to Cardi B’s lawyer’s ill-health. Cardi B is expected to give evidence in person.
Rooney wins in “Wagatha Christie” Libel Battle
Coleen Rooney has come out the victor in the long-running libel case brought against her by Rebekah Vardy. The case, dubbed “Wagatha Christie” stemmed from a post from Ms Rooney on Twitter and Instagram about the leaking of stories about her private life to the Sun newspaper. Ms Rooney explained that she had published fake stories about herself that were visible only to certain people on Instagram, reasoning that if they appeared in a newspaper she would have identified who was leaking them. In the denouement, she said ‘It’s ……………. Rebekah Vardy’s account.’
Ms Vardy denied providing stories to the Sun, and sued Ms Rooney in libel. Rooney defended the claim, saying that the allegations are true, and their publication was in the public interest.
After a 7 day trial, the judge found that the allegations were substantially true, Ms Vardy, had supplied stories about Ms Rooney to the Sun, through her agent Ms Watt, whose actions were condoned by Ms Vardy. The judge found that several stories from Ms Rooney’s private Instagram were passed to the Sun by by Ms Watt, including two stories that were fabricated by Ms Rooney because she wanted to identify who was responsible for the leaks – these were one relating to Ms Rooney seemingly exploring gender selection to have a daughter, and one relating to the Rooney’s basement being flooded, neither of which in fact took place.
The judge said of Ms Vardy that “significant parts of her evidence were not credible”. The court also found that it was likely that Ms Vardy had deliberately deleted her WhatsApp chats with Ms Watt and that Ms Watt dropping her phone in the sea shortly after the court ordered it be inspected for evidence was not an accident. Despite that, WhatsApp messages did play an important role in the evidence, including messages between Ms Vardy and Ms Watt about Ms Rooney, and messages about footballer Danny Drinkwater’s arrest for drink-driving.
The truth defence provides a complete defence and so Ms Rooney successfully defended the claim. The public interest defence was therefore not needed, but the judge addressed it briefly, finding that although the subject matter was one of public interest, the defence failed because Ms Rooney had not put the matter to Ms Vardy before publishing her post.
Rebekah Vardy brought the claim seeking to vindicate her reputation, and the judge said that she was “genuinely offended” by Ms Rooney’s accusation and had “a degree of self-deception” about her role in passing information to the Sun. But the case has ended with the court finding that she did indeed do as Ms Rooney alleged.
Since bringing the case Ms Vardy has faced abuse which the judge described as “vile”, making the point that: “Nothing of which Mrs Vardy has been accused, nor any of the findings in this judgment, provide any justification or excuse for subjecting her or her family, or any other person involved in this case, to such vitriol.”
Ms Vardy has said she is “devastated” by the judgment and that the judge got it wrong. She also urged those who had been abusing her and her family to stop as the case is now over. Ms Rooney said that she is pleased with the decision, but that “it was not a case I ever sought or wanted”. She stated: “I never believed it should have gone to court at such expense in times of hardship for so many people, when the money could have been far better spent helping others.” Ms Rooney later posted on Instagram that she bore Ms Vardy no ill-will, but that the judgment made clear she was right.
Ofcom has found that the BBC’s World at One news programme breached broadcasting impartiality rules during a February 2021 interview in which Ruth Davidson accused the Scottish government of corruption. The lead story that day related to the inquiry by the Scottish Parliament into the behaviour of former First Minister Alex Salmond. Mr Salmond had been accused of sexual harassment of female officials but has subsequently been acquitted of 13 charges of sexual assault. On the day of broadcast Mr Salmond had pulled out of an evidence session at Holyrood after the Crown Office said some material from his written evidence had to be redacted.
During an interview on the programme, Ms Davidson, former leader of the Scottish Conservatives expressed strong views, including raising questions about corruption within Scottish government institutions and officialdom. She stated that the controversy had gone far beyond a dispute between Mr Salmond and his successor as SNP Leader and First Minister, Nicola Sturgeon. Ms Davidson’s comments included: “This has now got to the structure of democracy in Scotland and whether our institutions are robust or whether they have been corrupted”. Ms Davidson expressed concerns about information that was not, she said, being made available to the Scottish Parliament, and called for a full judge-led inquiry.
Ofcom investigated the case under section 5 of the Code which deals with due impartiality and due accuracy particularly in relation to news programming and matters of political controversy. Ofcom also considered the date of the broadcast, and whilst it did not fall within an election period as defined by the Code, it took place in the run-up to an election.
Ofcom acknowledged that this was a developing story, and last minute changes in events led to changes in the BBC’s coverage of those events. It found that it was perfectly legitimate for the BBC to interview Ms Davidson, but that the broadcaster had failed to reflect an appropriate range of views and give them due weight. The interviewer and political correspondent who also discussed the matter on the programme did provide some context, and Sarah Montague in interviewing Ms Davidson had challenged her on some points, however this was not sufficient. In particular, Ofcom found that the position of the Scottish Government on allegations that it was corrupt, undemocratic, “running riot” in Holyrood and was “denying the Parliament its right of scrutiny” was insufficiently represented in the programme.
The BBC had made repeated requests to the SNP for an interview, which had not been successful. Ofcom took this into account, but noted that the obligation of due impartiality on the broadcaster remains, relying on section 5 of the Code which makes clear that where a broadcaster attempts to seek alternative views, but these are not readily available, there are a range of editorial techniques for maintaining due impartiality. In this case, Ofcom considered that the interviewer could have used robust questioning or provided stronger challenge to Ms Davidson’s statements during the interview.
Ofcom also considered whether the BBC had met its impartiality obligations by providing balance in other clearly linked and timely programming. Although later news broadcasts did present alternative viewpoints, Ofcom did not consider that the programmes were clearly linked, and noted that the presenter could have signalled to listeners that the story would be covered throughout the day, and alternative viewpoints would be offered.
COPYRIGHT – ARTIST JEFF KOONS FACES SCULPTOR’S “MADE IN HEAVEN” COPYRIGHT CLAIM
Superstar artist Jeff Koons will face a copyright suit from sculptor Michael Hayden after a judge refused Koons’ request to dismiss the claim. Mr Hayden is a set and prop designer for film and live performances. In 1988 he made a piece depicting a giant serpent wrapped around a rock. The piece was made for and bought by Cicciolina, a former porn star and politician, who was Mr Koons’ muse and wife from 1991-1994. Koons and Cicciolina featured in a series of sexually explicit poses in Koon’s Made in Heaven series and photos of the pair became the source materials for the sculptures, photographs, and paintings in the series. Three works from that series, dating from 1989-1990 were identified by Hayden as infringing works, as Koons and Cicciolina are lying on the piece created by Hayden. Hayden contends that whilsthe sold the piece to Cicciolina and her manager, he retained copyright in the works.
Koons sought to dismiss the claim on the basis that the piece was a “useful article” which could not be copyrighted. Hayden countered that the fact it may be used in a functional manner does not mean it is not a copyright work. The judge refused Koons’ application to dismiss, as the court did not find that the work was not subject to copyright protection, holding that it was a sculptural work, nor could it be decided at this preliminary stage whether the use was fair use, with Koons’ bearing the burden of showing that any use was fair.
Hayden’s claim comes some 30 years after the works were made. He says he only became aware of the alleged infringement in 2019, despite the notoriety of Koons’ work. The judge granted Koons request to limit any damages in the claim to the three year period prior to the lawsuit.
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