28 Mar 29 March 2018
In this issue of zoom-in brief, Olivia de Havilland loses her privacy and right of publicity lawsuit against TV Network FX and Feud’s creator Ryan Murphy; Miley Cyrus is hit with a $300 million copyright lawsuit over hit song We Can’t Stop; and Ofcom has upheld two separate complaints for breach of privacy against Channel 5’s documentary Inside The Gang.
A Californian appeal court has overturned a ruling that would have allowed a claim by Olivia de Havilland against channel FX and Ryan Murphy Productions, over the depiction of her character in the docudrama Feud: Bette And Joan, to proceed to trial.
zoom-in previously reported that the Oscar-winning actor and star of Gone With the Wind was seeking damages as well as an injunction to stop the show from continuing to be broadcast.
She claimed that her name and likeness were used to promote the series without her permission, and that it damaged her reputation by portraying her as a gossip and a hypocrite. She filed the complaint last year saying the series infringed her right to publicity, that there was an invasion of her privacy and that the creators of the programme and the TV network had been unjustly enriched.
In August, a judge turned down FX’s attempt to have the case thrown out under California’s anti-SLAPP rules (which protect defendants from so-called ‘Strategic Lawsuits Against Public Participation’ aimed to prevent free speech) and decided it should proceed because there was a minimal chance that de Havilland could win the claim.
FX appeared last week in the California Court of Appeals to try and get the ruling overturned and the appeal court reversed the judge’s decision less than a week later.
The appeal court referred to the First Amendment protection accorded to those in the creative industries who ‘take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transform them into art, be it articles, books, movies, or plays.’
Underlining the decision’s relevance to the docudrama model, the Court said whether a person in an expressive work is a world-renowned film star or someone that no one knows, she does not have ‘the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people’.
Feud creator Ryan Murphy called the reversal ‘a victory for the creative community, and the First Amendment…’ He went on to say that the dismissal ‘gives all creators the breathing room necessary to continue to tell important historical stories inspired by true events’.
De Havilland’s claim threatened the activities of that part of the television industry that works on the boundary between fact and fiction. While privacy law is less restrictive in California than in this country, the home of Hollywood is unsurprisingly more protective than the UK of the rights of celebrities, who can, as de Havilland did, bring proceedings over their image rights. The decision shows that such claims will struggle in the face of the First Amendment protections offered by US law.
Miley Cyrus is reportedly facing a $300 million copyright infringement lawsuit from the Jamaican artist Michael May aka Flourgon, who claims that Cyrus’ 2013 hit single We Can’t Stop closely resembles a song he wrote in 1988.
May, best known as Flourgon for his 1990 collaboration with Ninjaman Zig It Up, alleges that Cyrus’ song took ‘about 50 percent’ from his song We Run Things — including musical elements and the phrase: ‘We run things / Things no run we,’ which Cyrus sings in a chorus as, ‘We run things / Things don’t run we.’
May’s lawyers also argue that Cyrus owes her track’s ‘chart-topping popularity and its highly-lucrative success’ to May.
In addition to seeking damages, May is also seeking a halt to subsequent sales and performances of Cyrus’ song. Although the claim does not specify the damages sought it is being reported that a press release issued by May’s lawyers states that it’s a $300 million claim. At present the basis for such a huge claim is unclear.
We Can’t Stop peaked at No 2 on the Billboard Hot 100. It was kept out of the top spot by Pharrell Williams and Robin Thicke’s Blurred Lines, which was itself the subject of a multi-million-dollar lawsuit won by Marvin Gaye’s estate, who claimed that the song infringed copyright in the legendary soul singer’s 1977 hit Got to Give It Up.
Last week, in a case that has been closely watched in the music industry for its potential effect on copyright and creativity, a US appeal court upheld a jury’s copyright infringement verdict against Blurred Lines, agreeing with the decision that it had unlawfully infringed Gaye’s original song, and that the family of the late soul singer was entitled to the $5.3 million (£3.7 million) it was awarded at trial.
Judge Jacqueline Nguyen dissented, saying that the two R&B tunes resembled each other only in style not substance and that the decision struck a blow to future musicians and composers.
Numerous copyright infringement claims have followed in the wake of the Blurred Lines verdict, and in many instances songwriters have settled the lawsuits, rather than take on the risk of a sizeable jury award. Cyrus is yet to publicly respond to the claims.
Ofcom has upheld two separate complaints for breach of privacy against a Channel 5 documentary series on gang culture in the UK, called Inside The Gang.
One episode, entitled Young Blood, was the subject of both complaints, and looked at how gang members use social media to share videos depicting the abuse, intimidation and humiliation of rival gang members.
The basis of the first complaint was that Mr D’s privacy had been infringed because phone footage of him, while sitting semi-naked in his prison cell and being forced to apologise to a rival gang after he had been attacked by another inmate in prison, was broadcast in the programme without his consent. It was claimed Mr D was identifiable from his voice which had not been disguised, although his face had been blurred. In addition, the person who had filmed Mr D had not had their face obscured or voice disguised. It was also claimed the broadcast had affected Mr D’s mental health.
Ofcom decided that although the steps taken by Channel 5 may have limited the extent to which Mr D would have been identifiable to members of the wider public he may still have been recognisable to people who already knew him and who may, or may not, have already had knowledge of the incident. Ofcom said that the fact his voice was not disguised, and the identity of the perpetrator was not masked, meant there was still a risk of Mr D being identified to third parties.
Ofcom did not accept that the fact footage had already appeared on social media meant Mr D no longer had a right to privacy in relation to the footage. Ofcom took account of the fact that the footage showed Mr D being intimidated and being made to apologise to a rival gang after he had apparently been attacked, and of the claim that Mr D’s mental health had been affected by the broadcast and that he now feared for his life.
Ofcom did not consider that the broadcaster’s right to freedom of expression and the audience’s right to receive information about the matters explored by the programme outweighed the intrusion into Mr D’s right to privacy in this case, and it held that Mr D’s privacy had been infringed.
Ofcom also has upheld a complaint made on behalf of a Mr H in similar circumstances for the same programme.
In this case Mr H was shown in footage being asked to strip naked and physically abused. Ofcom took into account that the footage showed Mr H when he was 14 years old whilst being subjected to a humiliating and violent attack. His face and genitals were ‘heavily blurred’ but Ofcom considered privacy could still be engaged even where the person may not be identifiable to the wider public, particularly if the individual might still be identifiable to those who know them.
Ofcom concluded that the footage showed Mr H in a highly sensitive situation and that he had a legitimate expectation of privacy in the material as broadcast and that the interference caused to his privacy was very significant.
These rulings highlight Ofcom’s willingness to acknowledge that a person’s privacy can still be infringed by the broadcast of sensitive footage, even if the material is already in the public domain and has been pixilated or blurred by the broadcaster. They highlight the risks of jigsaw identification even where the subject of the footage is not immediately identifiable, and that this risk extends to those who already know the subject and the details of a particular incident. And they reflect the increasing recognition by the law that privacy rights can protect the subject of information from the effects of its further use or disclosure, where the main consequence of that use is the sense of intrusion and distress felt by the subject themselves.
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