04 Sep 6 September 2022
In this issue of zoom-in brief, Kobe Bryant’s widow is awarded $15m after photographs were taken and shared of the helicopter crash which killed her husband and daughter, Taylor Swift finds herself trying to shake off another copyright lawsuit, a church pastor in the USA faces copyright infringement claims over their staging of hit play, Hamilton, legal action is threatened against Australian tennis superstar, Nick Kyrgios, over his Wimbledon outburst at a fan; whilst Sussex Police have been criticised by film makers for charging for interview footage.
Privacy – US – Jury awards widow $15m damages in Kobe Bryant helicopter crash privacy claim
Following a two-week trial, a Los Angeles jury has awarded Kobe Bryant’s widow, Vanessa Bryant, $15m damages after they found that emergency responders unlawfully photographed and shared graphic pictures of the 2020 helicopter crash which killed her husband and 13-year-old daughter, Gianna. The helicopter collided with a steep remote hillside in Calabasas, killing all nine on board.
A US National Transportation Safety Board investigation found that the crash had probably been caused by the pilot becoming disorientated and losing control after flying into fog.
Some of the sheriff’s deputies and firefighters who attended the scene photographed the wreckage using their mobile phones, including taking photos of the deceased. Some showed these images to members of the public (including a bartender and gala attendees) and one deputy texted one of the images to a friend whilst playing a video game. The photo-sharing came to light after two citizens complained to the respective departments.
Ms Bryant and co-plaintiff Chris Chester – a widow of another victim who also lost his daughter, Payton, in the crash – sought damages for invasion of privacy, negligence and intentional infliction of emotional distress.
Los Angeles County, defending the claim on behalf of the first responders, argued that site photography is “essential”, and that the images have not become public – with officials taking steps to delete them from devices.
However, the plaintiffs said that they lived in fear of the photos one day appearing on the internet.
Bryant and Chester were each awarded $15m after less than a day of jury deliberations. The damages awarded were calculated on the basis of both compensation for emotional distress already suffered, and future distress.
Shockingly, it was found that members of the police department routinely share images from scenes of accidents, and neither the sheriff nor fire departments were found to have sufficient training in place. Alex Villanueva, the Los Angeles County sheriff, previously revealed that the department had a policy against taking and sharing crime scene photos, but this did not apply to accidents.
Bryant originally received $16m, but this was reduced after a juror spotted an error with the verdict form. District Judge John F. Walter explained to the court last Friday (26 August) that the jury intended to compensate the plaintiffs equally. He did not consider it necessary to recall the jury. Luis Li, Bryant’s lawyer, said that his client felt this result to be “just”.
The hefty compensation figure dwarfs the $2.5m settlement payouts reached in parallel claims brought by families of the other crash victims.
Bryant intends to donate the proceeds from her award to the Mamba and Mambacita foundation, a charity named after her husband and daughter. The families of the crash victims have sued the owners and operators of the helicopter for negligence and wrongful death, while Ms Bryant has also sued the estate of the pilot, Ara Zobatan.
The crash prompted California legislators to enact a state law prohibiting first responders from taking unauthorised photos of deceased victims at accident or crime scenes (termed the “Kobe Bryant law”). Those who breach this law face fines of up to $1000 per offence.
Would this claim have succeeded in the UK?
The decision to defend the claim may surprise practitioners in this field.
In a criminal claim involving similar facts in England, two Metropolitan police officers were jailed for 33 months each after pleading guilty to misconduct in public office for taking and sharing photographs of the bodies of murdered sisters Nicole Smallman and Bibaa Henry in June 2020.
The question of whether a civil claim would succeed is more nuanced, and there is yet to be a misuse of private information (“MPI”) claim on all fours with the Bryant case in the UK. This is largely because similar claims involving media defendants often result in settlement, e.g.: phone hacking claims by parents of murdered schoolgirl Milly Dowler and 7/7 bombing victim Christian Small; and a claim by the reality TV star Jade Goody’s family in respect of publication of photographs of her burial (albeit the latter arguably more directly engaged the family members’ privacy rights).
It would be a brave defendant who would fight such a claim at trial in England and Wales, where the information is self-evidently highly private, there are no apparent Article 10 justifications for publication, and clear distress has been caused to the deceased’s surviving family members.
In the UK, journalism codes stipulate that the press should avoid causing distress to victims’ relatives (Ofcom Code §§8.18-8.19, IPSO’s Editors’ Code of Practice Clause 4, BBC Editorial Policy ss.7 and 8), thereby providing an alternative form of redress.
Copyright – US – Taylor Swift faces another copyright lawsuit
zoom-in previously reported that Taylor Swift is defending a lawsuit brought in respect of the song Shake it off. However, Swift is now accused of not playing by the book in an entirely different medium.
In a claim issued in Tennessee’s Federal Court, the poet Theresa La Dart seeks over $1m damages over claims that a book which accompanied Swift’s 2019 Lover album ripped off various design elements of her self-published 2010 book of same name.
In particular, La Dart alleges that the books adopt “substantially the same format of a recollection of past years memorialised in a combination of written and pictorial components within a book”. Beyond the title, La Dart draws attention to a vast number of alleged similarities between the publications, including: the format of the cover (with the author in a “downward pose”); the colour scheme; the “nature setting” of one of the photographs; the foreword; the inner book design; and the back cover (with the author in an upward pose). These creative elements are not, it is alleged, “typical of or present within other books”.
The court will have to consider whether any of the above listed elements are protected by copyright. However, generic elements will not attract copyright protection, and nor will names, titles or concepts.
Swift is yet to respond to the claim.
A church pastor has apologised to the producers and creators of Hamilton for infringing the copyright in the Tony-award winning musical.
The Texas-based Door Christian Fellowship McAllen Church staged a biblical version of the hit play without permission and changed various lyrics to include Christian themes. The performance was livestreamed to the Church’s YouTube channel and clips were shared on social media.
Among other changes, Alexander Hamilton was shown to repent, and Hamilton was described not as a “bastard, orphan, son of a whore” but as a “scoundrel, orphan, son of a harlot”. “It’s hard to have intercourse over four sets of corsets” was also changed to “It’s hard to keep them from me when I’m coming for your sources”.
A sermon was also added to the close of the show, in which the pastor stated: “Maybe you struggle with alcohol, with drugs, homosexuality, maybe you struggle with other things in life, your finances – whatever – relationships. God can help you tonight. He wants to forgive you for your sins.” However, a spokesperson denied that the church is anti-LGBT.
The US Copyright Act protects the performance of copyrighted music during religious services but not other public performances, and specifically limits the protection of “dramatico-musical works” to those of a religious nature. The exemption is also unlikely to extend to copyrighted works which have been altered.
In a tweet, Hamilton’s creator, Lin-Manuel Miranda, thanked those who flagged the “illegal” production and stated, “Now lawyers do their work.”
Church pastor Roman Gutierrez subsequently issued a statement apologising for the unauthorised production, agreeing not to stage the performance, and pledging to destroy all recordings of it.
A Hamilton spokesperson has confirmed that all damages would be donated to the South Texas Equality Project, a partnership “focused on advocacy and visibility of the LGBTQIA+ community”.
Defamation – “Drunk” tennis fan threatens to sue Nick Kyrgios
Australian tennis star Nick Kyrgios may soon be swapping Centre Court for the High Court after a Polish lawyer, Anna Palus, threatened to sue him in defamation for comments he made during the 2022 Wimbledon Championships final.
During the final, Kyrgios – who is renowned for his on-court outbursts when matches are not going his way – complained to the umpire: “She’s distracting me when I’m serving in the Wimbledon final. There’s no other bigger occasion. You didn’t believe me and then she did it again, it nearly cost me the game. Why’s she still here? She’s drunk out of her mind … speaking to me in the middle of the game, what’s acceptable?”
When the umpire said he did not know who Kyrgios was referring to, the player said: “I know exactly which one it is, it’s the one with the dress, the one who looks like she’s had about 700 drinks bro.”
Ms Palus was temporarily removed from Centre Court. She claims she had been encouraging Kyrgios and had only had two drinks. Through her lawyers, Ms Palus has released the following statement: “… Nick Kyrgios made a reckless and entirely baseless allegation against me. Not only did this cause considerable harm on the day, resulting in my temporary removal from the arena, but Mr Kyrgios’s false allegation was broadcast to, and read by, millions around the world, causing me and my family very substantial damage and distress.… I hope that Mr Kyrgios will reflect on the harm he has caused me and my family and offer a prompt resolution to this matter. However, if he is unwilling to do this, I am committed to obtaining vindication in the High Court.”
In a claim for defamation the claimant must prove: (1) reference: that the statement complained of identified her; (2) defamatory meaning: that the statement would tend to lower her in the estimation of right-thinking members of society generally and caused her actual or probable ‘serious harm’; and (3) publication: was published by the defendant. In a claim for slander (where the words are spoken, rather than written) the claimant also needs to show special damage, i.e. losses caused directly by the statement.
Ms Palus may face particular challenges with proving reference. Kyrgios’ statements may have been broadcast to millions, but Ms Palus’ image was not. Kyrgios’ description was vague and unspecific since the umpire was unable to immediately identify her. The fact Ms Palus was temporarily removed from the stadium and later provided an interview to The Telegraph may not be determinative on that point.
Ms Palus has not yet issued proceedings. Kyrgios has not provided a public comment in response to her statement.
Sussex Police charging filmmakers £250 a clip for interview footage
The horrific crimes of the so-called Brighton Cat Killer – Steve Bouquet – made headlines. He was jailed for five years and three months at Hove Crown Court in July 2021 after being found guilty of 16 offences. At the time of Bouquet’s trial, a video showing part of his police interview was issued to the media.
The role of the press as a “public watchdog” reporting criminal proceedings is well-known and cannot be understated. “Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse” as the Court of Appeal once put it. It is a fundamental principle of the justice system.
The principle is reflected in the 2005 CPS Protocol on Media Access to Prosecution Materials. The Protocol outlines categories of prosecution material relied upon by the Crown in court that should or may be released to the media. The Protocol states that video and audio tapes of police interviews with defendants may be released after consideration by the Crown Prosecution Service in consultation with the police and relevant victims, witnesses and family members.
There are no time limits on open justice. The Protocol does not contain a deadline by which the media can request prosecution material. Instead, the test is whether the material informed the decision of the court: “Material released to the media must reflect the prosecution case and must have been read out, or shown, in open court, or placed before the sentencing judge.”
Yet, when a documentary maker Jody Doherty-Cove contacted Sussex Police to source interview material relating to Bouquet following his death from cancer earlier this year the police responded by offering to sell the footage for £250-a-clip for non-exclusive use for up to three years. Clips used as evidence in court and others not played to the jury were offered for sale.
Even with UK inflation soaring, a price increase of £0 to £250 in twelve months is eye watering. Sussex Police sought to defend its volte-face by drawing a distinction between contemporaneous and non-contemporaneous reporting. A spokesperson said that:
“On a day-to-day basis we supply the media with a great deal of information and materials about policing issues, operations and investigations […] In this case, evidential material used in court was supplied to all media freely for use at the time. For requests to use non-contemporaneous material, and where its judged there is no further policing purpose, we may seek a fee for administrative time so as not to burden the tax-payer.”
Such a policy risks pricing local journalists out of covering crimes in their communities. As Doherty-Cove commented: “[b]y charging for the footage, it feels as though Sussex Police is limiting their content based on the deepness of a potential buyer’s pockets”.
Five neighbouring police forces – the Met, Essex, Surrey, Kent and Hampshire – said there were no circumstances in which they would sell police interviews to the press.
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