09 May 9 May 2022
In this issue of zoom-in brief, Drake is dropped from No Guidance copyright claim brought against both him and Chris Brown, Netflix successfully fights copyright claim centring around Tiger King docuseries footage, actor and director Noel Clarke sues BAFTA for defamation, Laurence Fox seeks a jury trial in his defamation action; whilst the Kardashians are victorious, as Blac Chyna is refused damages in defamation claim.
Two musicians who brought copyright proceedings over the hit song No Guidance have dropped their case against Drake – but not his co-artist Chris Brown.
Brandon Cooper and Timothy Valentine, who use the stage names Mr Cooper and Drum’n Skillz, commenced the copyright action in October 2021. Cooper and Valentine claimed that Brown and Drake copied or principally derived their Billboard Hot 100 song No Guidance from Cooper and Valentine’s 2019 song I Love Your Dress. They allege that expert evidence from a musicologist showed that the works share a ‘high degree of combined similar features’.
In response, Brown and Drake argued that Cooper and Valentine’s song was ‘obscure’ and denied they knew it existed prior to writing No Guidance. They suggested elements such as the lyrics ‘you got it’ were commonplace. In March, Drake and Brown filed a further document rejecting the ‘purely conjectural and speculative’ suggestion that Brown and Drake may have obtained the song via music executive Mic Tee and rapper Birdman.
No explanation has been reported for Cooper and Valentine’s decision to drop the case against Drake but not Brown.
Claims against high-profile musicians for breach of copyright have become increasingly common, with actions recently being brought against musicians like Ed Sheeran, The Weeknd and Post Malone. After winning his copyright battle over the song Shape of You earlier this year, Sheeran told BBC Newsnight that he regretted settling a similar case over his song Photograph. A key finding in the Sheeran decision was the compelling evidence that Oh Why had not been the source of Sheeran’s inspiration. If the claim against Brown proceeds to trial, he may choose to run a similar argument.
Netflix has been successful in defending a copyright case relating to its hit series Tiger King. Timothy Sepi and Whyte Monkee Productions sued Netflix and the show’s producer Royal Goode Productions, over the use of eight videos filmed by Sepi. Seven of the videos were filmed whilst Sepi was working at Joe Exotic’s zoological park. The eighth video, which documented the funeral of Joe Exotic’s husband, Travis Maldonado, was filmed by Sepi shortly after he left his role at the park.
Sepi claimed that he and/or Whyte Monkee Productions owned the copyright in the videos, and their use in the series without permission infringed his rights. Netflix applied for summary judgment on the basis that seven of the videos were not owned by Sepi and the eighth was lacking in originality such that it did not qualify for copyright protection. It was also argued that its use of all the videos was fair use and so not an infringement of copyright.
An Oklahoma judge found that the seven videos filmed whilst Sepi was employed at the park were created during the course of and within the scope of his employment. As such they were works for hire, and the copyright is owned by his employer, not Sepi.
As to the eighth video, the funeral video, the argument that it lacked sufficient originality to be protected by copyright was rejected by the court, as the placement of camera, and decisions on focus, angle and what to film at least arguably met the minimum requirements for copyright protection. However, the judge found that Netflix’s use of the video was fair use, noting the following: the use of the video in Tiger King served a different purpose to that intended in the original video; it had been used as the raw material to create new information and aesthetics and was therefore transformative; the clips were a tiny portion of the series and not of themselves exploited for commercial gain; the original video was factual and had previously been published and only a tiny portion of the video featured in the show; and the Netflix use had not usurped any primary market for the work. The commercial nature of Tiger King did not undermine the judge’s conclusion.
This brings to a conclusion this copyright case which has been ongoing since 2020.
In the UK, copyright legislation provides that, where a literary, dramatic, musical or artistic work is made by an employee during the course of their employment, the employer will be first owner of any copyright in the work (unless an agreement has been made to the contrary). Where a person works as a contractor or a freelancer under a ‘contract for services’, however, the individual (rather than the company engaging their services) retains copyright in any works created by the contractor as part of the engagement. Accordingly, if companies wish to ensure that they own copyright in the products of their contractors’ services – which they usually will – it is important to ensure that contractor agreements contain a clause expressly assigning copyright in the products of the services to the company engaging the contractor.
Actor Noel Clarke is suing BAFTA for defamation after it suspended his membership following sexual harassment allegations against him which he denies.
BAFTA gave Clarke an award for his contribution to British Cinema in 2021, but suspended the award and Clarke’s membership of the organisation until further notice, after the Guardian newspaper published a report in which 20 women accused him of sexual harassment and bullying between 2004 and 2019. Clarke denies all the allegations.
In March, after assessing the claims, the Metropolitan Police issued a statement saying it would not be investigating as it had ‘determined the information would not meet the threshold for a criminal investigation.’ The Met added that if any further complaints are reported they will be thoroughly considered.
Clarke is now suing BAFTA, along with The Guardian Media Group and Condé Nast, owner of GQ magazine, which ran an interview with the two journalists who broke the story.
In response to the news that Clarke had issued legal proceedings, a BAFTA spokesperson said: ‘A year ago, BAFTA was transparent about what led to Mr Clarke’s award and membership being suspended following serious accusations of groping, harassment and bullying by 20 women published by The Guardian. We stand by our decision and are very surprised by the news he now wishes to sue the arts charity. If proceedings are served, we will of course defend ourselves.’
Last year, after the claims emerged, Clarke apologised ‘deeply’ for some of his actions which had affected people ‘in ways I did not intend or realise’, but ‘vehemently’ denied any sexual misconduct or criminal behaviour.
Clarke is well-known for his work in Kidulthood, Adulthood and Brotherhood, and has also starred in Dr Who and Sky’s Bulletproof.
Actor Laurence Fox has taken the unusual step of requesting a jury trial in a libel claim. Mr. Fox is being sued by Ru Paul’s Drag Race UK star Crystal, former Stonewall trustee Simon Blake, and Coronation Street actress Nicola Thorp who accuse him of referring to them as ‘pedophiles’ on Twitter. In his response to the claim, Fox does not allege that the three are pedophiles, saying he was using a ‘rhetorical device’. He is, however, counterclaiming, suing them for defamation for accusing him of being racist.
The Twitter spat arose after Fox tweeted at supermarket Sainsburys, in response to its post celebrating black history month, saying it had created ‘safe spaces’ for black people. Fox said: ‘I won’t be shopping in your supermarket ever again whilst you promote racial segregation and discrimination.’ In response Crystal, Blake and Thorp tweeted, referring to Fox as a racist. Sainsbury’s told Fox that its ‘safe spaces’ were online support groups.
If the court grants Fox’s request, it would be the first jury trial in a defamation case in England since comedian, Frankie Boyle’s claim against the Daily Mirror. In 2012 Boyle was awarded over £50,000 in damages over an article which called him a ‘racist comedian’. The Defamation Act 2013 reversed the presumption that defamation trials would be heard by a jury, and no defamation case has been heard by a jury since.
Lawyers for Fox argue that a jury trial is appropriate in a case such as this where an allegation of racism has been made and a key question will be ‘What is a racist?’. Fox’s barrister argued that the diversity of a jury of 12 would be better able to reach a consensus on the meaning of ‘racism’, and that a jury would strengthen the decision as it would be ‘incapable of being undermined on the lazy basis that a white judge sided with a white man who denied being racist’.
Lawyers for Crystal, Blake and Thorp argued against a jury trial, saying racism is an ordinary English word and it is not difficult to work out the meaning. A jury trial would take longer and, it was argued, a judgment from a judge would make clear the basis for any decision.
The Judge commented that juries could include people with real bias or prejudice towards one or more parties, although noted that even if trial were by jury, a judge would still be involved in the case. The Judge reserved his ruling to a later date.
A Californian jury last week returned its verdict in the defamation proceedings brought by Blac Chyna – declining to award her any damages.
As zoom-in previously reported, Chyna commenced defamation proceedings in 2017 against four members of the Kardashian-Jenner clan: Kim, Khloe, Kris and Kylie. Chyna sought $100 million in damages in connection with allegations that she was violent towards Rob Kardashian, her former fiancée, during an incident in 2016. Chyna claimed that these comments led to her reality TV show – Rob & Chyna – being cancelled after only one season.
The 2016 incident was at the heart of the trial. Chyna’s lawyer argued that Rob ‘didn’t have a mark on him’ and the four women had no reason to believe the attack had occurred. By contrast, the Kardashian’s lawyer argued that the women believed the attack occurred as Kris Jenner’s boyfriend, Corey Gamble, broke up the altercation.
Witnesses during the star-studded trial included Chyna and Rob, the four Kardashian-Jenner defendants, Corey Gamble and E! network executives. The E! network executives reportedly testified that the reality show was cancelled because of the relationship breakdown between Rob and Chyna, not because of the allegations by the Kardashian-Jenner family.
After Chyna gave evidence, the Kardashian-Jenner family filed a request that the judge dismiss Chyna’s claims, arguing that Chyna’s claims were ‘absurd’ before the trial began, and that ‘no additional testimony or evidence’ had emerged during Chyna’s testimony. The request sought that the ‘unsupported and wildly speculative claims for damages’ not be permitted to go to the jury. It also argued that Chyna had not provided evidence of the emotional distress she claims to have suffered, other than one payment to a therapist in 2021.
The judge dismissed the defamation claim against Kim but allowed the claim against her for interference with contract to proceed. The judge also permitted the claims against the other three Kardashian-Jenner defendants to go to the jury.
After deliberating for twelve hours, the jury found that the Kardashians had acted in bad faith and were not justified in telling the executives of Rob & Chyna that Chyna had abused Rob. However, it held that this had no substantial effect on Chyna’s contract. As a result, it did not award any damages.
Chyna’s attorney, Lynne Ciani, indicated that Chyna would appeal the finding. Her mother, Tokyo Toni, has launched a GoFundMe page to raise funds for the appeal. Commenting on the verdict on the red carpet at the Met Gala, Kris Jenner told reporters that she was happy the case was over and the family would be celebrating.
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