zoom-in brief | 16 March 2018

In this issue of zoom-in brief, Oscar winning director Guillermo Del Toro and film distributors Fox Searchlight are sued over their film The Shape of Water; Rebel Wilson’s record defamation payout in Australia gets challenged by a host of Australian media companies; and Bill Cosby’s copyright lawsuit against the BBC in California is dismissed.

(US) Copyright – Oscar winner Guillermo Del Toro and Fox Searchlight sued over Shape of Water

The family of a Pulitzer-winning playwright has filed a copyright infringement lawsuit against Guillermo del Toro and Fox Searchlight alleging that the Oscar-winning film The Shape of Water is a ‘derivative’ work that has ‘glaring similarities’ to a 1969 play called Let Me Hear You Whisper by the late Paul Zindel.

Zindel’s family is suing the studio, the director and others in a California court claiming there are at least 61 similarities. The complaint – which seeks damages – notes that both works take place during the 1960s in a secret laboratory that conducts experiments for military purposes, both protagonists are unmarried, introverted cleaning women who work graveyard shifts at the labs, share their lunches with a creature, dance with a mop to engage it, try to rescue the creature when the lab makes plans to ‘vivisect’ it, use a laundry cart in their rescue plans, and aim to release the creature to the sea.

The suit also alleges that there are other parallel characteristics in that both works use a motif of a ‘romantic vintage song playing on a record player inside the laboratory’, adopt a similar ‘dreamy and ‘surreal’ mood and rely on ‘fantasy sequences’.

Demanding a jury trial, the claimants assert that because the play was widely published, and there are similarities between the film and the play, the film was made ‘knowing that it infringed Zindel’s original literary work’.

The 43-page document claims that Fox et al should have obtained a licence from the Zindel family and given fair credit to the original play.

‘Instead, the defendants did nothing, necessitating this action to vindicate Zindel’s copyrights, and to prevent the defendants from exploiting a celebrated author’s creativity without due recognition,’ the claimants say.

In response Del Toro has said ‘I’d never heard of this play before making The Shape Of Water, and none of my collaborators ever mentioned the play,’.

Fox Searchlight said it would ‘vigorously’ defend the ‘ground-breaking and original film’.

‘These claims from Mr Zindel’s estate are baseless, wholly without merit and we will be filing a motion to dismiss,’ a spokeswoman from Fox Searchlight said.

(Aus) Defamation – Rebel Wilson’s record defamation payout challenged by Australian media companies

Rebel Wilson’s $3.6 million (£2.7 million) defamation payout is to be challenged by a group of Australian media companies.

Last year the Supreme Court of Victoria in Melbourne, Australia awarded Wilson the record sum in general, aggravated and special damages after agreeing that she missed out on film roles due to various articles published by Bauer Media which unfairly portrayed her as a serial liar who had faked her way to a Hollywood career.

The award comprised $650,000 in general damages, including aggravated damages, and $3,917,472 in special damages for opportunities of screen roles lost because of the articles. The sum awarded was the largest in Australian history with Justice John Dixon ruling that the actress’s global reputation had been damaged to such an extent that a departure from the rule capping general damages at $389,500 (£220,000) was justified.

Bauer were already appealing the decision when News Corp Australia, Fairfax Media, Macquarie Media, the ABC and the country’s Seven and Nine TV networks sought leave to intervene and join the appeal.  

The lawyer for the joint media group said the rare move was triggered by the media’s desire to protect free speech and to keep legal costs from spiralling out of control.

‘The concern is that Justice Dixon found that where aggravated damages are awarded, the damages cap no longer applies.  This sets a precedent because if someone has an aggravated damages claim then they can be given unlimited damages – the sky is the limit’.

He went on to explain ‘Media organisations regularly join forces on matters of extreme public importance. An example of that would be when they band together to fight suppression orders, which regularly happens. But it is rare for media companies to come together in a defamation action.’

After Bauer announced they were appealing the court’s decision, Rebel Wilson expressed her anger on Twitter.

‘Am not surprised that Bauer has decided to appeal the damages amount in my recent defamation case considering their disgusting history,’ she wrote. ‘I am disappointed that this now delays my plans to support Australian charities and Australians in the entertainment industry.’

The Court of Appeal is expected to consider the application on April 18.

Libel claimants in England and Wales frequently seek aggravated damages where they complain about the behaviour of the defendant in publishing the words complained of, or in defending the claim. But awards where aggravated damages, as here, amount to more than 50% of general damages are unheard of, and seem more like so-called “exemplary” damages, intended to punish a defendant for wilfully publishing a libel, which are equally unusual.

(US) Copyright – Bill Cosby lawsuit against BBC dismissed

The BBC has succeeded in its motion to dismiss a copyright infringement claim over its use of footage of Bill Cosby’s comedy career in a documentary about the star’s legal problems.

As previously reported in the winter issue of zoom-in, the complaint, filed with the US District Court of California by the Carsey-Werner Company – which produced The Cosby Show starring Bill Cosby – said that clips from The Cosby Show incorporated in a documentary titled ‘Bill Cosby: Fall of an American Icon’ were used without the necessary permission.

The documentary, which aired in the U.K. in June, showed the disputed clips in telling the story of how the US comedian, actor, musician and author came to face a criminal trial over allegations of sexual assault. It interviewed 11 individuals, including those who knew Cosby professionally, as well as his accusers.

Commentators in the US thought the case would turn on arguments over Fair Use, a similar doctrine to Fair Dealing in UK law.

Instead, however, the defendants relied on the fact that copyright is a territorial right, and argued at this stage that no actionable infringement could possibly have taken place within a California court’s jurisdiction because the documentary was only broadcast in the UK.

The programme was shown initially on BBC2 and then on the iPlayer. The Claimants had argued that their copyright was infringed because it was seen by viewers in the USA, using Virtual Private Networks (“VPNs”) to avoid ‘geoblocking’ restrictions built into the iPlayer, which aim to prevent access by those outside the UK.

But the BBC’s motion relied successfully on this feature, and said: ‘Anyone viewing Fall outside of the U.K. did so without the authorisation of Defendants Sugar Films and BBC. At no time did Defendants authorise Fall to be made available to viewers in the United States, via regular broadcast, iPlayer or any other means.’

The Judge emphasised in reaching his decision that the fact that there were some viewers in California did not mean that the Defendants directed their conduct towards California, particularly because this viewing occurred despite the Defendants’ intentions and efforts to prevent it. 

The argument that the Bill Cosby documentary was so ‘California-centric’ as to find conduct directed at the state, and thus jurisdiction, was also rejected. Interviews and filming of location shots in Los Angeles weren’t sufficient for these purposes.

The case was dismissed without prejudice, and the decision that the use of geo-blocking should protect programme-makers and broadcasters from liability in other jurisdictions is a welcome one for the TV industry. The arguments about Fair Use of the clips would have been likely to have been considered if the BBC’s application had failed, and the case had been allowed to proceed to trial.


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