31 Oct 1 November 2019
In this issue of zoom-in brief, new trial ordered in Florence Foster Jenkins authorship dispute, landmark compensation award to reality show contestant, BBC overturns production order relating to journalist’s note and Netflix Panama Papers film airs despite legal action.
The Court of Appeal has set aside a judgment which found that the then-girlfriend of the writer of Hollywood comedy drama Florence Foster Jenkins was not its joint author and has ordered a new trial in the case.
The case involves a dispute between Julia Kogan, an opera singer, and screenwriter Nicholas Martin about the authorship of the screenplay, which became a successful film, directed by Stephen Frears, and starring Meryl Streep and Hugh Grant.
Kogan and Martin lived together when the idea of a film based on Florence Foster Jenkins – whose story both parties accepted had been introduced to Martin through Kogan – arose and early drafts of the screenplay were written.
The trial Judge concluded that Kogan’s contributions never rose above the level of providing useful jargon, along with helpful criticism and some minor plot suggestions, and were not sufficient to qualify her as a joint author.
In an unusual move, the Court of Appeal reviewed and enlarged the factual background to the dispute, drawing on the parties’ evidence at trial to fill out a more detailed picture of their roles in the creation of the screenplay.
The Court also gave a detailed procedural history of the case, which was litigated in IPEC, a court with a special jurisdiction for intellectual property cases.
It went on to give an illuminating account of the law concerning joint authorship, which is defined by s 10(1) of the Copyright, Designs and Patents Act 1988, and set out a clear 11 step framework for analysing the issue.
It considered the idea that joint authors must collaborate in the creation of a work and said that it is “logical to suppose that the skill which goes into devising the plot is properly to be regarded as part of creating the work”.
The Court went on to say that “A collaborative work may thus come into existence if, in the context of a particular joint project, one person decides on the plot and the other writes the words to give effect to the plot.”
“There will be a panoply of other ways of working as well, for example the labour of writing may be shared, or the labour of working out the plot, scenes and characters may be shared.”
It reinforced this analysis with observations on the extent to which authorship is related to “the skill and effort involved in creating, selecting or gathering together the detailed concepts or emotions which the words have fixed in writing” rather than simply “who pushed the pen” and that a “contribution” to a screenplay might relate to “storyline and plot”.
The Court held that the trial Judge had been wrong to find that the parties had not collaborated on the work involved in creating the final screenplay from the preceding drafts. It found that the Judge should not have refused to look at witness evidence, leaving the Court of Appeal without the benefit of essential findings of primary fact.
It also found that the trial Judge should have made a specific finding as to whether there was a collaboration, and his summary of Kogan’s contribution failed to take account of significant matters, including her contribution to the shaping of Florence Foster Jenkins’ character and the plot.
The Appeal was allowed and a new trial before a different judge was ordered.
This is an important judgment for those involved in creative collaborations and for copyright law generally and will likely be influential in how to approach collaborative work in legal terms.
In focusing on the fact that a sufficiently detailed idea may attract copyright protection it makes clear that contributing elements of a work such as plot might give rise to an intellectual property right.
Reaching agreement on these legal issues at an early stage in the process will now be more important than ever.
A former Australian reality TV show contestant has won a compensation claim brought against the network responsible for the show, for psychological injury suffered during filming.
Nicole Prince starred in the 2017 home renovation show House Rules, in which six couples renovate each other’s homes and then rate one another.
Prince brought a workers’ compensation claim before the New South Wales Workers Compensation Commission in relation to her treatment during filming and its aftermath, claiming she had suffered adjustment disorder, anxiety disorder, depression and post-traumatic stress disorder as a result.
The tribunal heard that Prince and her team-mate were “essentially told to be as negative as possible surrounding the efforts of other contestants” during their appearance.
She alleged they were subjected to harassment and bullying during filming and this was “not only condoned by the producer,” but “encouraged”.
Prince also claimed she subsequently received threats of physical abuse on the network’s social media channels, after the show portrayed her as a bully.
“I feel devastated and worthless about the loss of my career and working life,” she said.
“After my episode aired I wanted to kill myself and I started drinking more alcohol in an attempt to self-medicate my injury.”
The network’s insurer initially denied liability on the basis that Prince was “not a worker” and Prince then made an application to the Compensation Commission.
The network argued that Prince did not have employee status, relying on the fact that she was a contestant vying for the show’s $200,000 prize, and on a contract which said that appearing on the programme “does not create an employer/employee relationship between Seven and you”.
However, the arbitrator found in favour of Prince, holding that the network “derived benefit from the applicant giving her time and engaging in the home renovations for the television show” and that it would also benefit from advertising revenue.
He also found that factors such as remuneration, “exclusive use of the applicant for every hour of every day during which the show was being filmed”, and the network’s ability to veto the wearing of particular clothes, pointed to employee status.
There was “little doubt”, said the arbitrator, that Prince was placed in a “hostile and adversarial environment” during the show.
He also found in relation to Prince and her team-mate that the show had been edited “in such a selective manner as to portray them in a certain negative light” and that it was “extraordinary” that Seven had not removed “hateful comments” about Prince from its social media.
“The failure to do so represents, in my view, a factor to which the applicant has reacted and which has contributed to her injury,” he said.
The arbitrator made an order for compensation and Prince has been referred to a medical specialist to determine the level of permanent impairment arising from the injury.
Australia’s legal system is very similar to that of England and Wales, and the ruling has potentially far-reaching consequences for reality show franchises across the common law world.
Recent deaths related to reality TV, including those of two Love Island contestants and a participant in The Jeremy Kyle Show, have brought the approach by the TV industry to those who sign-up to such programmes into the spotlight.
The Jeremy Kyle Show was cancelled and is currently the subject of an investigation by a Parliamentary committee.
This decision is a further indication that the legal and regulatory framework within which reality shows are made may have to be re-drawn.
The BBC has successfully challenged a production order which required it to produce a journalist’s note of an interview with a man who became a witness in a criminal trial.
The trial was of George Ormond, who was accused of sexually assaulting boys and young men while he worked as a youth football coach in Newcastle between the 1970s and 1990s.
One of the complainants, David Eatock, gave an interview to the BBC’s Victoria Derbyshire, and a recording of that interview was available at the trial, but there were differences between the account he gave in the interview and the account he gave to police two weeks later.
To prepare for the live interview, a BBC journalist conducted a mock off-air interview with Eatock to see what he would say, for which she prepared a typed note of her questions and Eatock’s answers.
It was this note which was the subject of an application by Northumbria Police for a production order under the Police and Criminal Evidence Act 1984 (“PACE”), which it sent to the BBC just 10 days before Ormond’s trial.
The BBC resisted the application, but the Judge granted the Order just over a week before Eatock was scheduled to give evidence, and the BBC decided to comply under protest while making a claim for judicial review to challenge the Judge’s decision.
The Court conducted a review of the production order regime and considered four grounds advanced by the BBC to challenge the Order.
On the third, successful, ground, the Court considered whether the Judge was correct to hold that for the journalist’s note to be relevant evidence for the purposes of a production order, it did not need to be immediately admissible.
The Court found that the trial Judge had made an error: a person can only be ordered to produce material which will be immediately admissible in evidence without more. It is not enough that the material sought may become admissible because of some future event, such as statements being given at trial which are inconsistent with a previously given statement.
The Court did not need to reach any conclusion on the fourth ground, that the Judge erred in his evaluation of the public interest in comparing the benefit likely to accrue to the investigation against the BBC’s Article 10 right to receive and impart information.
It did, however, acknowledge that it is “critical that the media are able to speak to sources, including alleged victims of sexual abuse, without those individuals fearing that a record made of their account by a journalist can be obtained by the police and made available to defence counsel to attack their credibility at trial.”
Production order applications have increased significantly in recent years, particularly in light of the scrutiny faced by the Police and CPS over their fulfilment of disclosure obligations, and can consume extensive time and costs for media organisations.
This decision, which the Police accepted would assist police forces, prosecutors and the media, limits the type of material that can be the subject of such applications, and is a positive development for the media, making speculative applications less likely.
The ruling makes it clear that unless a media entity has evidence which would be immediately admissible at trial (such as footage which shows offending taking place), the relevant condition under PACE will not be satisfied, and any application is unlikely to succeed
Netflix has released The Laundromat, a film about the Panama Papers, despite legal action being brought in the US.
Jurgen Mossack and Ramon Fonseca, lawyers from now defunct law firm Mossack Fonseca, brought legal proceedings against Netflix in Connecticut. They claim the film is defamatory of them and could prejudice any criminal investigation or case against them. They also allege infringement of Mossack Fonseca’s trademark. The film, they say, portrays them as: ‘ruthless uncaring lawyers who are involved in money laundering, tax evasion, bribery and/or other criminal conduct.’
Mossack Fonseca was at the heart of the Panama Papers saga, after over 11 million documents from the firm were leaked online, detailing the offshore details of a number of high profile wealthy individuals.
The Laundromat stars Gary Oldman, Antonio Banderas and Meryl Streep, and was directed by Steven Soderbergh. It has been made available on Netflix following a limited cinema release.
Netflix called the lawsuit a “frivolous legal stunt” aimed at censoring free speech. It said any damage to the lawyers’ reputations had been caused long before the release of the film, as a result of the publication of the Panama Papers.
A judge ruled that there was no reason for the case to proceed in Connecticut and transferred it to the Los-Angeles area federal district court. Netflix is based in California.
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