22 Feb zoom-in brief | 23 February 2018
In this issue of zoom-in brief, Rapper Kendrick Lamar and R’n’B singer SZA are being sued in the US over their video for All the Stars, a song which features on the soundtrack to Marvel movie, Black Panther; the High Court finds Channel 5 in breach of privacy rights over their programme Can’t Pay? We’ll Take It Away!; and stand-up comedian Louise Beaumont is sued by her estranged husband over references to their relationship.
Rapper Kendrick Lamar and R’n’B singer SZA are being sued in the US courts over their video for the song All the Stars, which features on the soundtrack to the Marvel movie Black Panther.
The claim has been brought by artist Lina Iris Viktor. The British-Liberian conceptual and performance artist has accused the pair of attempting to recreate the ‘unique look and feel’ of her gilded ‘Constellations’ series in the video, without her permission.
She claims to have previously approached Lamar’s label through her lawyers, on the basis that she was willing to resolve the complaint in return for a public apology and a licence fee.
Her legal claim highlights the irony of the alleged infringement of her copyright, given the content of her work and the film in which the song appeared, saying:
‘The Infringing Video and the Movie promotes (and profits from) themes of black and female empowerment and the end of racist and gender exploitation, themes particularly topical in the current environment. Yet, in a bitter irony, the Defendants have ignored the wishes of the Artist, herself a Black African woman, whose life’s work is founded on an examination of the political and historical preconceptions of ‘blackness’, liberation and womanhood.’
It goes on to make a personal attack on the stance adopted by Kendrick Lamar:
‘In contrast to his message in the song’s lyrics that ‘I hate people that feel entitled,’ and that ‘I want my credit if I am winning or I am losing,’ Defendant Lamar, who is the public face of the Infringing Video and is quick to take credit for it in public statements, has sought to distance himself from any responsibility for the video as an infringement of Plaintiff’s rights.’
In a claim for what in English law would be the flagrancy of the infringement, she relies on the fact that her work was used following a refusal by her either to lend or create a piece for the video, saying that this use was ‘both an egregious violation of federal law and an affront to the artist, her livelihood, her legacy and to artists everywhere’.
Viktor commented on her Facebook page, thanking those who had supported her and saying that she was seeking ‘justice’.
The claim was filed only very recently, and we await Kendrick Lamar’s and SZA’s response. zoom-in brief will report on developments.
Channel 5 will pay £20,000 in damages in connection with an episode of Can’t Pay? We’ll Take It Away! after the High Court found it was a misuse of the private information.
Mr Ali and his wife Mrs Aslam were evicted from the home they shared with their two children in Barking in April 2015. The High Court Enforcement Agents (commonly referred to as bailiffs) who carried out the eviction were accompanied by a film crew from an independent production company, filming for the Channel 5 series. The story was shown in an episode of the show first aired in August 2015 and subsequently repeated 35 times, as well as being available on Channel 5’s on demand service. In total it was viewed over 9.65m times.
Mr Ali was filmed emerging drowsily from the room he was using as his bedroom in his nightclothes. The couple were shown in distress, packing their belongings and being berated by their landlord’s son. The inside of their home including bedrooms and bathroom was shown. The couple had expected to be given further time to vacate the property. Indeed, it emerged they were told by the Council’s housing department that if they left the property before they were evicted they would be regarded as ‘intentionally homeless’ and would not be rehoused. The couple’s children, although not shown the in programme had also suffered as a result of it, in particular the couple’s daughter was bullied at school.
The judge found the couple had a reasonable expectation of privacy in their home, even though they were being evicted from it. Channel 5 had argued that the couple were trespassers, as the landlord had already obtained an order for possession from the court – but the legal position is that they were tenants until the writ of possession was executed (i.e. until they were evicted). In any event, a property can be a person’s ‘home’ in Article 8 privacy terms, regardless of the position in property law. The judge found the house was their home for these purposes until they left it.
Channel 5 also made an analogy between showing the bailiffs executing the writ of possession and court reporting, relying on the ‘open justice’ principle. However, the judge rejected this. Whilst the Channel could legitimately have broadcast the fact of the writ of possession or the fact of the eviction, this did not mean it was justified in broadcasting the inside of the couple’s home and them in distress during the eviction as they were being taunted by their landlord.
Channel 5 also relied on social media posts by the landlord and his son, who had filmed parts of the eviction on a mobile phone and posted short clips online. They were viewed by somewhere between a few dozen and a few hundred people. The Claimants had complained about these posts before Channel 5 first broadcast the programme. The judge accepted what Mr Ali said when asked about it in court – that there was no comparison between the impact of a few hundred people watching postings on social media and 9.65 million watching a television programme.
Channel 5 had argued that the couple consented to being filmed and that material being broadcast, and that the broadcast was in the public interest.
The judge found the couple had not consented to being filmed, and were not in fact told what the filming was for, despite the show’s production bible requiring them to do so. At one point a member of the film crew started to explain, but was stopped by the bailiff. As could be seen from the rushes, at various points both Mr Ali and Mrs Aslam objected to being filmed. When Mr Ali finally agreed to briefly answer some questions from the film crew, this was ‘the lesser of two evils’ in that otherwise the programme was likely not to include anything of his side of the story, in particular as the landlord had made serious allegations about them. Further he had later telephoned the television production company and made clear he objected to being on television.
As to the public interest, it was accepted that there was a public interest in the general subject matter of the programme: debt, rent arrears, and what happens when bailiffs execute writs of possession. Channel 5 argued that it was entitled to illustrate these matters with the stories of real people in real situations, as this is the best way to engage viewers and stimulate debate. However, the judge found that the use of the Claimants’ private information went beyond what was justified for the purposes of the public interest. The focus of the programme was not on matters of public interest, but on the drama of the conflict between the couple and their landlord, conflict that was encouraged by one of the bailiffs, Mr Bohill in order to ‘make good television’. For example at one point he encouraged the landlord to ‘give it some wellie’. Although it was argued by the Claimants, the judge did not conclude that the programme was materially unfair or inaccurate in its presentation of events.
The judge awarded Mr Ali and Mrs Aslam £10,000 each in damages, having found that the broadcasting of the programme caused the couple distress. He said he would have made a higher award had it not been for the online postings by the landlord and his son. The ruling has implications not only for Can’t Pay? We’ll Take It Away, but for all programmes using a similar method of filming officials (whether public or private) going about their business and the people they interact with. Those making programmes of this type may wish to review their procedures.
This is the second time in recent months that Can’t Pay? We’ll Take It Away has come under scrutiny from a privacy perspective. As we reported in the Winter 2017 issue of zoom-in magazine (https://abbasmedialaw.com/zoom-in-magazine/zoom-issue-8 at page 10), Ofcom found that another Can’t Pay? programme had amounted to an unwarranted infringement of privacy of a complainant – a ‘Miss F’.
Comedian Louise Beaumont is being sued by her estranged husband over material contained in her Edinburgh Fringe stand-up show. Ms Beaumont, who uses the stage name Reay, is being sued by Thomas Reay in defamation, privacy and under the Data Protection Act. He is seeking damages and an injunction to prevent her publishing further statements about him.
Lawyers for Mr Reay have said the allegations made, which included an allegation that the relationship between the couple was an abusive one, are serious and false – as well as that the show breached Mr Reay’s privacy and personal data rights by using still and moving images of him and revealing private details of their relationship.
Ms Beaumont has said she only referred to her husband ‘a couple of times – perhaps 2 minutes’ worth of reference in a 50-minute show.’ She removed the material from the show – entitled ‘Hard Mode’ after receiving her husband’s complaint. The show was billed as being an immersive comedy about life in an ‘authoritarian regime’ but one critic described it as ‘at its core… about a very recent raw heartbreak’. Ms Beaumont has set up a crowd-funding page to fund her defence, on which she says the issue is one of free speech, and that she is facing censorship.
Mr Reay’s legal team deny that the case raises free speech issues or that it constitutes any form of censorship. They say Mr Reay was never asked for his consent in relation to the use of the material and that the references to him have caused him enormous distress.
Comedians often make provocative statements, and use their own lives as source material referring to partners, ex-partners and friends in their jokes and material. As the laws of defamation, privacy and data protection apply to comedians as they do to everyone else, often legal risk is managed by not providing identifying information about living individuals, changing names, or by seeking the explicit consent of the person being referred to. The latter course is often what needs to happen where partners or ex-partners are referred to, whether the stories are true or not, as even if they are not named, or false names are used, they are likely to be identifiable to at least some people. Where consent is sought and given, best practice is to record it in writing.
The last comedian before the libel courts was Frankie Boyle, but in contrast to the present case, Frankie Boyle was the claimant, winning damages in 2012 of over £50,000 from the Daily Mirror after it published an article describing him as ‘a racist comedian’. That case was also notable as being one of the last defamation cases to be heard before a jury, before the practice was effectively abolished in 2014. This case will be heard by a judge.
zoom-in will report further as the case progresses.
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