16 Jan 17 January 2020
In this issue of zoom-in brief, former stripper Samantha Barbash sues over Jennifer Lopez film; Brazil’s Supreme Court overturn a ban on ‘blasphemous’ Netflix film The First Temptation of Christ; and in a US copyright dispute an antique mapmaker sues Netflix and Amazon over Bruce Willis film.
The woman who inspired Jennifer Lopez’s character in Hustlers is suing the film makers for $40m (£30m).
In the lawsuit, Barbash is alleging Lopez’s Nuyorican Productions and the film studio STX used her likeness and story without her permission and defamed her in the movie. She also claims that she was approached repeatedly for her consent but did not give it.
Inspired by true events, and adapted from the 2015 viral New York Magazine story The Hustlers at Scores, the film tells the story of a group of New York strippers – led by Lopez’s Ramona – who were accused of drugging and robbing a number of Wall Street bankers in the months after the 2008 stock market crash.
Barbash was sentenced to five years’ probation for conspiracy, assault and grand larceny after the scheme was uncovered and the scam was reported to the authorities.In addition to a permanent injunction that would bar the film studio from reproducing or distributing “Hustlers,” as well as a number of other injunctions, Barbash is seeking $20 million against STX for compensatory damages and another $20 million for exemplary damages.
The court document alleges that the makers of the film used Barbash’s likeness and drew a direct connection to her without her consent “for advertising purposes, and for purposes of trade and commercial benefits” and that this breached her privacy rights under New York state law.
“As a direct and intended consequence of the defendants’ promotion and marketing of the film, Ms. Barbash’s name became heavily entrenched in the film’s media coverage long before the movie ever premiered,” the suit reads. “Defendants did not take caution to protect the rights of Ms. Barbash by creating a fictionalized character, or by creating a composite of characters to render J. Lo’s character a new fictitious one. Rather they engaged in a systemic effort to make it well known that J. Lo was playing Ms. Barbash.”
In addition, Barbash’s lawyers claim in the suit that STX and the filmmakers acted with malice and gross or otherwise reckless disregard for the truth so much so that the film has permanently damaged Barbash’s personal and professional reputation.
In particular, Barbash alleges that a scene showing Ramona “using and manufacturing illegal substances in her home where she lived with her child” is untrue, defamatory and “grossly irresponsible” as a result.
In response, STX has said it would “defend our right to tell factually based stories based on the public record”.
As reported previously in zoom-in this claim is of a similar kind to that brought by living legend Olivia de Havilland when she sued FX Networks for the portrayal of her in Ryan Murphy’s series “Feud.”
In that case, De Havilland 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.
The lawsuit was thrown out by an appellate court, which cited the series’ creators First Amendment rights to portray De Havilland. She later petitioned the California Supreme Court to review the decision, but the court denied her request.
Brazil’s Supreme Court has overturned a ban on Netflix’s streaming of The First Temptation of Christ, a film that depicted Jesus as homosexual and had previously been ruled as blasphemous by Brazil law standards.
In Brazil, defamation of religion is illegal under Article 208 of the Penal Code; specifically, the code prohibits public vilification of any religious act or object of religious worship, punishable by a fine or a prison sentence up to a year.
The president of the Supreme Court, Dias Toffoli, reversed the previous decision and said Netflix should be permitted to continue offering their comedy film because “freedom of speech” is fundamental in a democracy. He continued saying that, “… One cannot suppose that a humorous satire has the ability to weaken the values of the Christian faith, whose existence is traced back more than two thousand years, and which is the belief of the majority of Brazilian citizens.”
The comedy depicts Jesus of Nazareth as a homosexual who brings his boyfriend home for his 30th birthday party. The comedy also depicts God the Father as a cruel and spiteful deity and St. Joseph as cowardly.
The original judicial decision to ban the film in Brazil followed a petition signed by over two million Brazilians stating that the comedic film broke the law and ‘seriously offended Christians.’ The uproar against the film escalated when, on Christmas Eve, the production company Porta dos Fundos responsible for the film, was the target of a firebomb attack.
Netflix had appealed the lower court ruling, saying that it would fight for artistic expression, ‘which goes to the heart of great storytelling.’
The controversy surrounding this film echoes the now historic controversy in the UK which surrounded the 1979 film Life of Brian starring John Cleese, Michael Palin, Terry Jones, Graham Chapman and Eric Idle. Life of Brian tells the story of Brian of Nazareth who is born the same day as Jesus of Nazareth, mistaken for him, who is worshipped as the Messiah and is then crucified by the Romans.
Whilst Monty Python always maintained that the film was not blasphemous, nor intended to destroy people’s faith, but rather was intended to lampoon the practices of modern organised religions, nevertheless the film was deemed blasphemous by many and was banned in certain countries including Ireland and Sweden, as well as in certain parts of the UK by outraged town councils.
The UK’s blasphemy laws were abolished in 2008. The last successful prosecution for blasphemy here was in 1977, when the publisher of Gay News, Denis Lemon, was given a suspended sentence for printing a poem about a Roman centurion’s love for Jesus. The private prosecution had been brought by the campaigner Mary Whitehouse.
An antique mapmaker is suing Random House Films for copyright infringement after a map he made of the Caribbean island of Curacao was used as a prop in the 2012 comedy-drama ‘Lay the Favourite’ without his permission.
The film, starring Bruce Willis, Vince Vaughan and Catherine Zeta-Jones, follows the story of a New York bookie who moves his sports gambling operation to Curacao to circumvent US gambling laws. The creator of the map, Vince Baker, claims the film infringes his copyright in it because it is ‘displayed prominently’ in several scenes and plays ‘a significant role’ in the film because it is used to emphasise the setting – and that the film makers should have known he owned the map and could have licensed it from him because his contact details were printed on it.
Baker filed the claim in the US District Court in Austin, Texas, where he is based. He is also suing Amazon Prime and Netflix for making the film available on their streaming services and is seeking damages, costs and an injunction to prevent the further distribution of any version of the film that features his map.
Copyright law in the UK includes a statutory ‘incidental inclusion’ defence (at section 31 of the Copyright, Designs and Patents Act 1988) which may apply where a copyright work, such as a map (a graphic, artistic work), appears in a film in an incidental way. This is a useful defence for content producers and is often relied upon, particularly in connection with documentary style filming where producers have little or no control over the surroundings in which they are filming. With the exception of music, whilst intentionally including a copyright work within a film would not in itself preclude relying on the incidental inclusion defence, convincing a court that use truly was incidental may be more difficult. Legal arguments as to whether use of a work is or is not incidental can be lengthy and complex.
Whilst the US does not have a directly equivalent statutory defence, the US ‘fair use’ doctrine may be relied upon in similar circumstances. It will be interesting to see how the film makers respond to Baker’s claim and how the US courts resolve the dispute in this case.
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