13 Sep 13 September 2019
In this issue of zoom-in brief, Ariana Grande sues Forever 21 over lookalike campaign, Netflix Fyre Festival documentary faces another copyright claim and the BBC agrees to pay Sir Cliff £2m in legal costs.
Ariana Grande has launched a claim against fast fashion retailer Forever 21, alleging they used her likeness in their branding to claim a false affiliation with the star.
Grande is seeking at least $10m (£8.2m) in damages for violation of her right to publicity, false endorsement, trademark infringement and copyright infringement.
The claim alleges that Forever 21 sought to partner with Grande in December 2018 but the star refused to agree a deal.
The retailer then launched a campaign which used a model who was a Grande lookalike wearing a high ponytail – the star’s signature look – and which used imagery from the video for Grande’s single 7 Rings, released in January.
“The resemblance is uncanny and Forever 21’s intent was clear: to suggest to the viewing public that Ms. Grande endorsed Forever 21, its products, and was affiliated with Forever 21” the claim says.
“Rather than pay for that right as the law requires, Defendants simply stole it by launching a misleading campaign across its website and social media platforms primarily in January and February 2019.”
“The campaign capitalized on the concurrent success of Ms. Grande’s album Thank U, Next by publishing at least 30 unauthorized images and videos misappropriating Ms. Grande’s name, image, likeness, and music in order to create the false perception of her endorsement.”
Forever 21 has said in response that it does not comment on pending litigation but is hopeful it will find “a mutually agreeable resolution” and can work with Grande in the future.
In a similar action earlier this year, Kim Kardashian-West won $2.7m in damages after accusing Missguided USA of ripping off her outfits, claiming the brand doesn’t just “replicate the looks of celebrities” but “systematically uses the names and image” of stars to promote its website.
Unlike in America, there is no right in English law to control one’s image, and false endorsement claims in England and Wales are usually brought on the basis that there has been “passing off” by the defendant in giving the public the false impression that the claimant is affiliated with their goods.
The most well-known recent example was a case brought by Rihanna against Topshop in which the singer succeeded in her claim for passing off over the sale of a t-shirt featuring a photo taken from a video shoot for her Talk That Talk album. Passing off claims are quite often threatened (and sometimes brought) against broadcasters and television producers, particularly where programmes incorporate an established name or trade mark within the programme’s title. Whilst often defensible on the basis that use of the mark is descriptive rather than being used to denote the origin or source of the programme, advice should be sought at an early stage, particularly if the owner of the mark is known to be litigious.
A Netflix documentary FYRE: The Greatest Party that Never Happened about the failed Fyre Music Festival is facing a third copyright infringement claim in the US after using footage filmed at the event by a festival goer without his permission.
The claim, brought by a man called Austin Mills against Netflix and the companies that made the programme, relates to footage Mr Mills filmed in The Bahamas in 2017 and uploaded onto YouTube.
Fyre Festival was advertised as a glamorous party on a deserted island. Its marketing material featured famous social media influencers including Kendall Jenner, Bella Hadid and Hailey Baldwin, tickets cost up to $100,000 and guests were promised luxury accommodation and “the best in food, art, music and adventure” in the Bahamas. Ultimately the event was cancelled and many ticket holders were left stranded at the unfinished site.
According to documents filed with the US District Court in California, the makers of FYRE: The Greatest Party That Never Happened initially sought to license the material from Mr Mills but decided to use it without his permission after a licence was not agreed. The claim alleges the defendants used clips depicting “the poor conditions of the festival during the much-anticipated portion of the film showing people arriving at the festival and discovering the dire reality of the situation as well as footage of the festival organizer addressing the distressed attendees.”
The case follows two similar claims that have been brought against the programme makers this year. The first claim reportedly settled in June.
Programme-makers often seek to use ‘user-generated footage’, filmed on mobile devices and posted online, within documentaries and other factual programmes. Licensing such material can be challenging, often because it is difficult to trace the copyright owner, or because the owner makes unacceptable demands. Whilst it is unclear what defences to copyright infringement might be available to Netflix and the makers of this documentary, programme-makers often decide to use such material without the copyright owner’s consent, instead relying on ‘fair dealing’ defences in the UK – most commonly in this context, fair dealing for the purposes of criticism or review and/or fair dealing with a quotation – and the ‘fair use’ doctrine in the US.
Both fair dealing and fair use laws can be very useful for content creators as they allow the use of other people’s copyright material without permission, and even where consent has been expressly refused, provided the use is fair and complies with the defences’ particular requirements. Abbas Media Law are experts in all aspects of copyright law as it applies to the production and broadcast of television, film and other content, including fair dealing. For advice, please contact email@example.com
The BBC has settled Sir Cliff Richard’s legal costs bill in his privacy claim against the corporation for around £2m.
The sum is in addition to the £210,000 in damages he won following a High Court trial in July 2018, and the £315,000 in costs the BBC paid to South Yorkshire Police.
The corporation has not disclosed the extent of its own legal costs.
The South Yorkshire Police raided the singer’s Berkshire home in August 2014 in the course of an investigation into an allegation made by a man who claimed he was sexually assaulted by Sir Cliff in 1985.
The singer consistently denied the claims, was never arrested or charged, and the case was ultimately dropped.
However, the broadcaster filmed the raid and showed footage taken from a helicopter, including aerial shots in which the inside of Sir Cliff’s home could be seen, on news bulletins throughout the day.
The star’s representative said: “Sir Cliff incurred these costs over a five-year period as a direct result of the actions of the BBC and South Yorkshire Police.
“He is of course glad that an agreement about costs has now been reached. Ultimately, however, Sir Cliff is substantially out of pocket (a seven figure sum), not least because there are costs that he has not sought to recover from the parties.”
The BBC said it was “pleased” to have reached “an amicable settlement” and “The BBC’s costs are within the scope of our legal insurance.”
The ruling in Sir Cliff’s favour saw the judge conclude that, as a matter of principle, a suspect has a reasonable expectation of privacy in relation to a police investigation and that was not outweighed by the BBC’s freedom of expression rights in this case.
There has been media criticism of the case as threatening press freedom.
Although it reflected the general direction of travel of the law in this area, the judge’s decision has made the media wary of reporting Police investigations and arrests and has shifted the balance of reporting in favour of suspects’ privacy.
The result has been that the justification for identifying the subject of a police investigation will usually need to be considered carefully before they are named.
Abbas Media Law is a niche law firm, specialising in advice to independent production companies and broadcasters. We are true experts in our field: all lawyers and advisors have in the past worked either in-house for broadcasters and/or production companies. Accordingly, we fully understand production and the needs of our clients. We offer expert advice and representation on all programme content related matters (legal and regulatory), all aspects of business affairs, as well as complaints-handling and litigation. Visit www.abbasmedialaw.com or contact us directly at firstname.lastname@example.org.