26 Mar 27 March 2020
In this issue of zoom-in brief, Katie Price to pay £25,000 to ex-husband for misuse of private information; US court overturns $3m Katy Perry Dark Horse copyright award; and Ofcom finds Channel 5 in breach for The Sex Business.
PRIVACY - KATIE PRICE TO PAY £25,000 TO EX-HUSBAND ALEX REID FOR MISUSE OF HIS PRIVATE INFORMATION
The High Court has ordered former glamour model Katie Price to pay £25,000 in damages to her ex-husband, former cage fighter Alex Reid, for unlawfully disseminating information about his sex life.
Reid, who was married to Price between 2010 and 2012, sued his ex-wife for breach of confidence, misuse of private information and breach of contract, claiming she had made a series of disclosures about his sex life which led to him being “denigrated in the street”.
Price was accused, among other things, of playing a sexually explicit video clip of Reid – off camera – to a studio audience of 40 people while filming an episode of Celebrity Big Brother’s Bit On The Side in January last year.
Reid claimed he became aware Price had “explicit and intimate images” of him in late 2009 after he saw them on her laptop. He said she had promised to delete the material and he was “absolutely horrified” when he realised some years later that she still had footage of him.
Reid said the resulting discussion about his sex life in the media was “very demeaning and harassing”. In a written ruling, Mr Justice Warby said Reid “has been mocked and denigrated as a sexual deviant and predator … He has sought counselling for stress and anxiety, which he attributes to [Price’s] disclosures.”
Given that Price was declared bankrupt in November last year, Reid will join a line of creditors.
COPYRIGHT - JUDGE OVERTURNS $3M DARK HORSE COPYRIGHT AWARD IN WIN FOR KATY PERRY
In 2019, a Californian jury concluded that Dark Horse had copied elements of Flame’s song, and awarded him almost $3 million. In the new ruling, the Court found that the relevant elements of Perry’s song were insufficiently original to warrant copyright protection, in a win for Perry.
The presiding judge wrote: “It is undisputed in this case, even viewing the evidence in the light most favourable to the plaintiffs, that the signature elements of the eight-note ostinato in Joyful Noise… is not a particularly unique or rare combination.”
The judge added that a relatively “common eight-note combination of unprotected elements that happens to be played in a timbre common to a particular genre of music can’t be so original as to warrant copyright protection”. Timbre is the quality and tone of a sound that makes it unique.
The decision comes a week after another US court considered a similar case involving Led Zeppelin’s Stairway to Heaven.
The Zeppelin case began in 2014, when journalist Michael Skidmore sued on behalf of Randy Wolfe’s estate, the late frontman of the band Spirit, claiming that the iconic opening instrumental riff in Stairway to Heaven was lifted from Spirit’s 1968 song Taurus.
The verdict in that case was ultimately in Zeppelin’s favour and was quoted in the District Court’s ruling on Dark Horse.
The Led Zeppelin ruling may also affect a high-profile copyright claim involving Ed Sheeran’s song Thinking Out Loud. That case – in which Sheeran is alleged to have copied elements of Marvin Gaye’s Let’s Get It On – had been due to go to trial last year, but the judge paused it pending the outcome of the Stairway to Heaven appeal.
Despite recent developments, the Dark Horse case may not be over just yet. Flame’s legal team have already indicated they intend to appeal the latest ruling to a higher court.
REGULATION - OFCOM FINDS CHANNEL 5 IN BREACH FOR THE SEX BUSINESS
The findings relate to three episodes of the series broadcast in June 2019.
Ofcom received forty four complaints : Me and My Sex Doll (Episode 1) prompted twenty three complaints; OAPs on the Game (Episode 2) ten complaints; and Teens Selling Sex (Episode 3) eleven.
The episodes included footage of:
- people working in the sex doll industry engaging in real sexual activity with sex dolls;
- sex workers engaging in real sexual activity with their clients; and
- adults who participate in pornographic films engaging in real sex acts with each other.
Me and My Sex Doll which contained arguably the most graphic material included footage of a man having sex with a sex doll in which a close-up of his erect penis was shown entering the sex doll’s vaginal opening as well as footage of ejaculate.
The episode also included close-up shots of a naked female adult sex performer with her legs wide open to camera as well as footage in which she was bending over on all fours with her buttocks towards the camera, while her partially masked vaginal and anal areas were photographed so they could be replicated on a sex doll.
Ofcom considered whether the broadcasts complied with Rules 2.3 and 1.19 of the Ofcom Broadcasting Code (‘the Code’).
Rule 2.3 states that “… broadcasters must ensure that material which may cause offence is justified by the context”.
Rule 1.19 in the chapter relating to Protecting Under 18s states that ‘broadcasters must ensure that … after the watershed … images and/or language of a strong or explicit sexual nature …[must be] … justified by the context’.
In defence of the series, Channel 5 said the editorial aim of the series was to hear the stories of sex workers in their own words and to “foster understanding of, and inform viewers about, aspects of modern British life rarely considered in public service broadcasting”.
It said the series depicted the “harsh and sometimes grim reality” of clients’ expectations, how the sex workers justified the services provided and how they felt about themselves and their clients. It aimed to be “an honest, rarely seen account of what it is like to be a sex worker, warts and all.”
Channel 5 acknowledged some of the footage was potentially offensive, but said “blurring and other devices, such as footage shot from a distance, were used to reduce any potential offence ..” and each episode carried “very clear and explicit warnings” both at the start of programmes and between parts in ad breaks, so viewers were left in no doubt about the nature of the content. For example, episode 1 carried this warning: “Be prepared for sexual activity right from the start, offensive language, masturbation, full frontal nudity, graphic discussion and footage of interaction with sex dolls, which may disturb some viewers”
Ofcom accepted that the warnings at the start of programmes and between breaks informed viewers of the strong sexual nature of the content. Ofcom agreed warnings were detailed and clear but said that the insufficiently masked and close-up graphic content and sexual language were still more explicit than viewers were likely to have expected in a programme broadcast from 10pm on Channel 5. Ofcom concluded that the warnings may not have sufficiently prepared viewers for what they were about to see.
The warnings broadcast between parts in episodes 2 and 3 were only visible on screen after break bumpers that included stylised but real, explicit images. Ofcom found that broadcasting these images before the warnings undermined the warnings’ value.
In considering whether the context justified the explicit content, in the usual way Ofcom considered a range of factors including: the content of the programme, the service in which the material is broadcast, the time of broadcast, the degree of harm or offence likely to be caused and the extent to which viewers were warned about the nature of the content.
Having done so, Ofcom concluded that the very graphic sexual content was not justified by the context i.e. at 10pm on Channel 5, a freely available public service channel.
Ofcom found that images were not shot at a sufficient distance or angle so as to limit their graphic nature and were not adequately blurred. It noted that genital and anal parts of the body and ejaculate were clearly visible despite blurring. In some cases, there was no blurring at all, resulting in close-up images of female genital areas and erect penises.
Ofcom found breaches of rule 2.3 and also rule 1.19 of the Code, the latter of which is intended to specifically protect Under 18s. In its ruling, Ofcom referred to figures published by the Broadcasters’ Audience Research Board in the six weeks prior to broadcast of the series, which indicated that on average nineteen thousand five hundred children may have still been watching Channel 5 at 10pm.
Whist no statutory sanction has been imposed, Ofcom has stated that Channel 5 will be asked to attend a meeting to discuss its compliance approach to such sexually explicit content.
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.