28 July 2023
US – Copyright - Rolling Stones copyright suit in jurisdiction skirmish
The Rolling Stones have filed a motion to strike out the copyright infringement action brought over their 2020 song, Living in a Ghost Town, in the Louisiana courts.
Spanish songwriter Sergio Garcia Fernandez filed the lawsuit in March, alleging that the rock band misappropriated elements of two of his songs – including vocal melodies, chord progressions, drum beat patters, harmonica parts, the electric bass line parts, the tempos and other key signatures. Seeking to explain how The Rolling Stones would have been familiar with his songs, Fernandez claims that he sent a demo CD of his tracks to Mick Jagger’s “immediate family member”, who expressed that Fernandez’s works and style “was a sound The Rolling Stones would be interested in using”.
The Defendants are seeking to strike out the motion, including on the basis that Louisiana has no jurisdiction to hear the case because Fernandez’s songs were not authored in the US or registered with the US copyright office. They assert that the appropriate forum for the case is a European court, as Fernandez is a Spanish citizen and the Defendants all have a presence there – whereas the only individual connected to Louisiana is Fernandez’s lawyer. Judgment on the motion is outstanding.
Defamation – Chanel Four and Dyson reach the court of appeal
Two companies in the Dyson group can proceed with their defamation claim against Channel Four following a judgment by the Court of Appeal on the preliminary issue of reference.
The proceedings arise from a Channel Four News broadcast in February 2022, which alleged exploitation and abuse in factories run by ATA, a Malaysian company that manufactures Dyson-brand vacuum cleaners and filters. The proceedings were brought by Sir James Dyson, the founder of the brand, as well as Dyson Technology Limited (DTL) and Dyson Limited (DL), which are both UK-based Dyson companies. There was no dispute that the broadcast referred to Sir James Dyson, who was named and pictured. However, the judge held that the broadcast was “simply not about him”, and that: “Only a reader that was hopelessly naïve about the way in which global companies like Dyson operate could consider that a single person, its founder, had day-to-day management responsibility for what happened in a manufacturing plant that supplied its products.”
The position of DTL and DL was more complicated, and the judge directed that the question of whether the broadcast referred to them be tried as a preliminary issue. The parties agreed that this question should be determined without considering evidence of extrinsic facts alleged to be known by some or all viewers of the broadcast. The judge concluded that the allegations in the broadcast were not directed at the entire group of companies, and that the ordinary reasonable viewer would identify two candidates as the subject of the allegations: the Dyson company trading with ATA, and the Dyson company responsible for the “PR operation“. Without reference to extrinsic evidence, the judge could not resolve whether DL and DTL were the companies referred to, and accordingly their claim failed.
DTL and DL successfully appealed this decision, with the Court of Appeal finding that the hypothetical reasonable viewer would identify DTL and DL as being referred to in the broadcast. The Court found that the judge erred in his legal approach by failing to review the broadcast in light of the knowledge of the claimant companies which a hypothetical viewer acquainted with those companies would possess. The Court found that the broadcast had “at least the theme that Dyson was a leading British company which sold products manufactured by ATA in Malaysia whose employees suffered abuse and inhuman working conditions and Dyson should have known what was happening and stopped it.” According to a Dyson spokesperson, the case will now continue in the High Court.
Whilst trials of preliminary issues of meaning are common (as well as on whether a statement is defamatory at common law and whether a statement is an expression of fact or opinion), trials of preliminary issues on reference are unusual. The judge held that this case demonstrated that caution must be exercised before the Court directs this course of action, and Court of Appeal agreed that the judge’s warning was “sound”. Accordingly, this course may now become even more uncommon.
Defamation - Noel Clarke defamation claim
Noel Clarke has commenced defamation proceedings against The Guardian in the English High Court, over eight articles alleging misconduct by 20 women.
The actor claims that the articles had a “catastrophic” effect on his career and is claiming general and special damages. The purpose of general damages are to console a Claimant for any distress, repair harm to the Claimant’s reputation, and act as vindication for the Claimant’s reputation. By contrast claims for special damages compensate material losses caused by a defamatory statement, and must be proved. Clarke is seeking approximately £10 million in special damages, arguing that “every existing or upcoming contract” has been cancelled, and he has “not had one single work contract” since the first article was published.
Clarke denies any sexual misconduct or criminal wrongdoing, and in 2022 the Metropolitan Police indicated that the claims published by the Guardian would not lead to a criminal police investigation.
The Guardian has said that it will “robustly defend” the claim, and stated that its investigation was “deeply reported and researched, relying on the testimony of 20 women”.
The first stage in the proceedings will be a trial of preliminary issue on meaning, whether the statements are defamatory, and whether they are statements of fact or opinion. This will take place in October or November 2023.
Clarke had initially brought the claim against BAFTA as well as other individuals including Guardian journalists and the then-BAFTA Chair and CEO. However he dropped the claims against these Defendants in September last year, stating in an interview that “there was no point in going after everyone else when actually that was the main source”.
US – Copyright – Saturday Night Live writer Sarah Silverman brings AI claim
Sarah Silverman and two other authors have brought copyright proceedings against OpenAI and Meta, alleging that their copyrighted books were used as training material for the AI platforms.
Silverman shot to fame as a writer on Saturday Night Live, and in 2010 authored an autobiography The Bedwetter. Along with authors Christopher Golden and Richard Kadrey, she is claiming that OpenAI (operators of ChatGPT) and Meta trained their technologies using copyrighted works. The lawyers representing Silverman, LLM Litigation, argue in a public statement that: “Much of the material in the training datasets used by OpenAI and Meta comes from copyrighted works—including books written by Plaintiffs—that were copied by OpenAI and Meta without consent, without credit, and without compensation. Many of these books likely came from “shadow libraries”, websites that distribute thousands of pirated books and publications.” The claim documents characterise shadow libraries as “flagrantly illegal”.
The three authors argue that ChatGPT is able to produce summaries of their books when asked – which they argue would only be possible if ChatGPT was “trained” using those works.
LLM Litigation is also acting for authors Mona Award and Paul Tremblay in their similar lawsuit against OpenAI. Award and Tremblay are also claiming that their books were “ingested and used to train ChatGPT” without their consent, and that OpenAI “profited richly” from the use of copyrighted materials. In the claim documents, Award and Tremblay assert that “Much of the material in OpenAI’s training dataset … comes from copyrighted works—including books written by Plaintiffs—that were copied by OpenAI without consent, without credit, and without compensation.”
OpenAI and Meta have not provided comment at the time of writing.
This is only the latest in a series of copyright claims about generative AI, as IP lawyers grapple with how existing copyright law can adapt to this new frontier of technology. Earlier this year, Getty Images sued the creators of an AI art tool, and Universal Music urged streaming platforms like Apple and Spotify to block AI services from scraping melodies and lyrics from copyrighted songs.
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