07 Mar 7 March 2022
In this issue of zoom-in brief, Dua Lipa faces two copyright claims over hit track ‘Levitating’, Marilyn Manson sues ex-fiancée for defamation following her allegations of abuse, Ofcom launches investigation in to Russian state funded news channel, Russia Today, whilst the High Court hears copyright infringement claim over an Only Fools and Horses dining experience.
Two of the most high-profile female pop stars of recent years are facing copyright battles relating to their work, as the phenomenon of legal claims relating to hit songs continues.
Last week, Dua Lipa was sued in Los Angeles by South Florida reggae band Artikal Sound System who claim that Lipa’s 2021 song ‘Levitating’ infringes copyright in their 2017 tune ‘Live Your Life’.
While the complaint does not contain much by way of detail, it alleges that the two songs are ‘substantially similar’.
‘Given the degree of similarity, it is highly unlikely that “Levitating” was created independently from “Live Your Life”’, the complaint says.
The band seek damages, an account of profits, and ‘other relief’ from the British singer, whose second album ‘Future Nostalgia’ helped her win British Female Solo Artist and British Album of the Year at the 2021 Brit Awards.
‘Levitating’ is a seemingly controversial track, as last Friday the 26-year-old singer was hit with a separate second copyright suit from two songwriters who allege that Lipa ‘levitated away plaintiff’s intellectual property’ by copying the ‘signature melody’ from the Plaintiff’s 1979 and 1980 songs. At the time of writing, Dua Lipa had not responded to the claims.
Taylor Swift meanwhile faces an ongoing claim over lyrics from musicians Sean Hall and Nathan Butler, who claim that her hit ‘Shake It Off’ copied their song ‘Playas Gon Play’, written in 2001, which contained the lyric ‘The playas gon play/Them haters gonna hate’.
While the first instance judge dismissed their claim, ruling that the lyrics about players playing and haters hating were simply too ‘banal’ to enjoy copyright protection in isolation, the song-writing duo had it reinstated by way of a successful appeal.
It has now returned to the first instance court, where further attempts by Swift to have the claim dismissed have so far been unsuccessful and it appears to be set for a jury trial.
Musician Jesse Graham had previously brought an infringement claim related to ‘Shake It Off’, based on an allegation of Swift copying his 2013 song ‘Haters Gonna Hate’, which was dismissed by the Court.
Perhaps encouraged by the continuing litigation by Hall and Butler, Graham has made various new attempts to advance claims against Swift over the same song.
Since Marvin Gaye’s estate won nearly $5 million in damages from Pharrell and Robin Thicke over ‘Blurred Lines’, the prospect of winning big from a jury decision, which (unlike in the UK) is how copyright infringement claims are decided in the US, has fuelled a rash of infringement complaints by earlier songwriters in relation to hit records.
Rocker Marilyn Manson is suing his former fiancée Evan Rachel Wood for defamation, emotional distress, and impersonation over the internet after she accused him of abusing her during their relationship.
Manson, real name Brian Warner, is the transgressive Goth rocker who made a career out of shocking the conventional Christian morality of middle America.
He has responded to accusations by Wood of sexual abuse by accusing the actress, a teen star who has gone on to have a successful TV and film career, and her friend Illma Gore of portraying Warner ‘as a rapist and abuser — a malicious falsehood that has derailed Warner’s successful music, TV, and film career.’
His complaint also alleges ‘a conspiracy’ concocted by the two women to take Warner down.
Gore and Wood appear in ‘Phoenix Rising’, a film due to be released on HBO in March, which charts Wood’s accusations against Warner, which began with her references to an anonymised allegation and culminated in Wood naming him in February 2021 as her alleged abuser on Instagram.
Four other women made similar allegations and, in the aftermath, Warner was dropped by his label, booking agent, and manager, and his forthcoming appearances were all cancelled.
The claim includes claims of the intentional infliction of emotional distress, and other causes of action include defamation, hacking Warner’s email, impersonation, and fraud.
A November 2021 Rolling Stone investigation based on nine months of research, court documents, and interviews with more than 55 people who have known Warner at various points throughout his life, detailed allegations of abuse against Warner made by more than a dozen women.
Separately, Manson is the defendant to four civil claims by alleged victims, in the latest example in the post- Me Too era of litigation by both alleged perpetrators and their alleged victims over allegations of abusive male behaviour.
Ofcom has opened 15 new investigations in to the due impartiality of news programmes on the Russian state funded news channel Russia Today (RT).
Russia’s invasion of Ukraine has seen the ground war mirrored in an information war, involving social media and the broadcasts of state-controlled media in Russia, which have referred euphemistically to the country’s acts of aggression as a ‘special military operation’.
Ofcom says that it has observed a significant increase in the number of programmes on the RT service that warrant investigation under the Broadcasting Code, noting that matters such as the crisis in Ukraine, require licensees to comply with the special impartiality requirements in the Code.
These rules require broadcasters to take additional steps to preserve due impartiality – namely by including and giving due weight to a wide range of significant views.
The investigations relate to 15 editions of the hourly news programme broadcast on RT on 27 February 2022 which, Ofcom says, will be expedited, given the severity and urgency of the current crisis.
Ofcom’s Chief Executive Dame Melanie Dawes comments on the announcement:
‘Given the scale and gravity of the crisis in Ukraine, audiences expect to be able to trust and rely on duly impartial broadcast news.’
‘When reporting on an armed conflict, we recognise it can be difficult for broadcasters to verify information and events, but it is imperative that they make every effort to do so. They must also explain clearly to audiences where there is uncertainty or where events are disputed.’
‘Supporting a fair and free media is central to Ofcom’s work. We take this responsibility – and our duty to protect audiences and uphold trust in news – extremely seriously. Freedom of expression is a cornerstone of our approach and fundamental to our democracy.’
‘Given the serious on-going situation in Ukraine, we will be concluding our investigations into RT as a matter of urgency.’
RT has repeatedly found itself in hot water with Ofcom in respect of its impartiality obligations, including over Ukraine coverage.
In September 2015, it was found in breach of the impartiality rules in its coverage of the events in Ukraine and Syria, and Ofcom upheld a complaint by the BBC that allegations made by RT about a BBC Panorama film were ‘materially misleading’.
RT also previously stated that the Ukrainian government was deliberately bombing civilians, had murdered and tortured journalists, as well as crucifying babies, and said that Ukrainian army forces were responsible for ‘ethnic cleansing’.
This was found by Ofcom to have “little or no counterbalance or objectivity”.
Ofcom’s investigation takes place in circumstances where the European Union has proposed banning the channel across all its member states, although this approach does not appear to be supported by the UK government at present.
The High Court has heard a trial of a claim for copyright infringement brought by the creators of classic sitcom Only Fools and Horses against the producers of an immersive theatre experience.
The defendants’ production is one in which punters interact with actors playing the popular sitcom characters over dinner and drinks.
The claim has been brought by Shazam, a television company founded by the late writer of the show, John Sullivan, against the creators of ‘Only Fools: The (Cushty) Dining Experience’.
Following John Sullivan’s death in 2011, Shazam is controlled by members of his family.
The issues for the Court include copyright ownership in the characters from a fictional work, and whether new material can be produced, based on the show, without a licence from those behind the original scripts.
Lawyers for Sullivan’s company Shazam claim the show exploits the ‘distinctive character traits conceived by John Sullivan’ and his characters’ ‘signature phrases and ways of speaking’ in order to sell tickets.
‘The sitcom constitutes one of the most valuable properties in British television,’ said Shazam’s barrister.
‘The outcome of this claim could have potentially very serious ramifications for [Shazam’s] exploitation of its intellectual property in relation to the sitcom.’
The Court will likely consider issues such as whether copyright subsists in the expression ‘shut up you tart’, whether ‘lovely jubbly’ is a generic south London saying or was Sullivan’s invention, and whether Del Boy’s mangled use of French terms such ‘creme de menthe’ merits legal protection.
‘Del uses French as a manifestation of his desire to appear sophisticated but often undoes that desire by often getting it wrong/mangled,’ Shazam told the Court in written submissions.
‘These are not purely verbal gags but part of Del’s character as they demonstrate Del’s need to put on a front, to sound impressive and sophisticated, even if actually wrong.’
In addition to the breach of copyright law alleged by Shazam, it claims that the dining show amounts to passing off.
This claim is based on two elements, first the use of the name of the show and domain name, which is relatively straightforward.
Second, it is based on substantial goodwill attaching to the name and characters and the world of the Sitcom, a more complex issue.
The Defendants deny passing off, saying that it would have been understood that the show was created in homage to the Sitcom, and defend the copyright claim on the basis that it is permitted by fair dealing.
In assessing the scripts of Only Fools and Horses, the Court will consider whether they are ‘literary works’ or ‘dramatic works’ for copyright law purposes.
The Court will also have to consider whether pastiche of a copyright work needs to be noticeably different from the original material, in order to be permissible.
The ramifications of the case are wide ranging, since it will consider the boundaries between legitimate pastiche or tribute works and those which infringe the works of the original creator.
Abbas Media Law is a niche law firm, specialising in advice to independent production companies and broadcasters. We are true experts in our field: all lawyers and advisors have in the past worked either in-house for broadcasters and/or production companies. Accordingly, we fully understand production and the needs of our clients. We offer expert advice and representation on all programme content related matters (legal and regulatory), all aspects of business affairs, as well as complaints-handling and litigation. Visit www.abbasmedialaw.com or contact us directly at firstname.lastname@example.org.