05 Jul 5 July 2022
In this issue of zoom-in brief, Dua Lipa faces copyright infringement action over her use of a paparazzi photo, Arron Banks is granted permission to appeal defamation lawsuit, estate of photographer brings copyright action against Universal Music Group over picture of hip-hop legend, Tupac; whilst Amber Heard files motion to appeal the verdict in the high profile defamation lawsuit against Johnny Depp.
Copyright – US – Dua Lipa sued over Instagram photos
Dua Lipa is being sued by a photographer who claims the British singer infringed his copyright by posting his paparazzi shots of her on Instagram.
It has been reported that New York-based Robert Barbera has filed a complaint in a California court saying he took the pictures in 2018 and claiming that Lipa, “without permission or authorisation… volitionally selected, copied, stored and displayed each of [his] copyright protected Photographs”.
The images show Lipa wearing a black sweater emblazoned with the word “HEROES” in large capital letters.
Barbera’s complaint goes on to claim that Lipa’s alleged infringements increased traffic to her Instagram account “and, in turn, caused Defendant to realize an increase in the revenues generated via Defendant’s promotional events and the sale of Defendant’s musical works”. It states that the photographer, who is seeking damages and other remedies, attempted to resolve the case out of court in 2019, but that communication between the parties “slowed and eventually stopped” after he provided Lipa with a draft version of his legal complaint.
Neither Lipa nor Barbera have commented on the complaint. Both parties have been involved in similar cases before. Last October, a lawsuit brought by photo agency Integral Images against Lipa over photos of her posted online was reportedly dismissed.
Meanwhile, Barbera previously tried to sue singer Ariana Grande for copyright infringement on two occasions, in 2019 and 2020, over her posting on Instagram photos of her taken by him: both cases were dismissed. A similar October 2019 claim against singer Justin Bieber was reportedly settled out of court.
Defamation – UK – Arron Banks allowed to appeal Carole Cadwalladr libel defeat
The multi-millionaire pro-Brexit campaigner Arron Banks has been granted permission to appeal the decision against him in his unsuccessful libel action against Carole Cadwalladr, an investigative journalist for the Observer and Guardian.
The judgment against Banks, the founder of the Leave.EU campaign group, was handed down on 13 June 2022, following a five-day hearing in January. Banks had sued Cadwalladr over remarks made in 2019 in a TED talk video and a Tweet concerning his relationship with the Russian Government.
Dismissing Banks’s claim last month, Mrs Justice Steyn concluded that the Tweet had not caused him serious reputational harm and while the TED talk had done so, from its publication until late April 2020, Cadwalladr was able to rely on the defence of “publication on matter of public interest” for that period. After that point, the Judge said, no serious harm had been caused to Banks’s reputation, because views of the talk would have “peaked”, and those who watched it were likely already supportive of Cadwalladr.
Banks subsequently asked for permission to appeal, on five separate grounds. Steyn J rejected four of his grounds, but granted permission relating to Banks’s contention that whether the TED talk had caused him serious reputational harm should only have been considered once by the Court, from the date it was published.
It has been reported that the Judge allowed Banks permission to appeal on the basis that this was “an issue of law that hasn’t been determined previously”. His barrister, Sara Mansoori QC, has said that Banks will consider whether to make a further application, to the Court of Appeal, for permission to appeal in respect of the four grounds that Steyn J rejected.
The estate of hip-hop photographer Chi Modu is bringing a claim against Universal Music Group alleging copyright infringement over the corporation’s use of an image of late rapper Tupac Shakur on its uDiscoverMusic website.
The lawsuit, filed last month in California, describes Modu as “an award-winning photographer, well-known for his photographs of hip-hop icons including Tupac Shakur, Notorious B.I.G., Mary J. Blige, L-L Cool J, and many others”.
It says that Modu “created an original photograph depicting” Tupac, the ownership of which passed to Modu’s estate after his death in 2021, and that the estate sent Universal a cease-and-desist letter regarding its usage of the photo on 9 February 2022.
The lawsuit, brought against Universal and 10 unnamed parties whom the estate says it cannot yet identify, contends that “Defendants failed to meaningfully respond” to the letter. It claims relief for copyright infringement, vicarious and/or contributory copyright infringement, and – alleging that the Defendants removed the estate’s copyright information from the photograph (misattributed the photograph) – breach of 17 US Code 1202.
The estate is seeking various remedies, including damages, an order requiring the removal of the photograph from the uDiscoverMusic website, and an award of all profits gained by the Defendants from the image.
At the time of writing, Universal has not commented on the claim.
Born in Nigeria and raised in New Jersey, Modu rose to prominence in the 1990s, becoming director of photography at The Source magazine. The photo of Shakur at the centre of his estate’s lawsuit appeared in the Rolling Stone book The ‘90s: The Inside Stories from the Decade That Rocked.
Shakur, one of the most influential rappers of all time, was shot and killed in Las Vegas in 1996.
Amber Heard has now launched an appeal of the verdict in her high profile defamation case against Johnny Depp in which she was found to defame him in a 2018 op-ed.
Last week, Heard’s legal team filed a motion to have the verdict against her thrown out and the case re-tried on the basis that the verdict that she defamed Depp was not supported by evidence. Heard argued that the ruling had a number of issues including: excessive damages, poor legal reasoning and improper vetting of the jury.
Advocating that the award for damages should be set aside, the filing argues that the damages are “excessive” and “unsupported by the evidence presented at trial”. Contending that the case relied on flawed logic, it is argued that Depp’s claim “proceeded solely on a defamation by implication theory, abandoning any claims that Ms Heard’s statements were actually false”. Heard’s motion also alleges impropriety in the juror vetting process, stating that there was a 25-year discrepancy over the date of birth of “Juror 15” on court records and in publicly available information.
As well as calling for the court to “investigate potential improper jury service”, Heard is calling for the verdict to be set aside in its entirety, dismissal of the complaint, or a new trial.
Depp’s lawyer said that the filing was “what we expected, just longer, no more substantive”.
Under US law, Heard is required to pay damages to the court whilst the appeal is pending. zoom-in will continue to follow the case and report on developments as they arise.
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