Sanicki Lawyers Melbourne

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The prolific reach of Instagram influencers is undeniable – it’s in the name. However, when it comes to your content centring around commentary on individuals and commercial entities, where is the line drawn between freedom of speech and character assassination?

As a direct result of contemporary ‘call-out culture’ phenomenon, various local social media creators and similar overseas accounts are coming under fire. For example, the heralded Diet Prada is the latest high-profile victim of the phenomenon.

The renowned call-out account is currently the subject of a defamation suit issued by the fashion giant Dolce & Gabbana. With over 2.9 million followers on the Instagram platform, Diet Prada rose to social media fame through its ‘call outs’ on problematic behaviour in individuals and companies within fashion, aiming to ‘hold the fashion industry to a higher ethical standard.’

In a recent Fashion Journal article, Bianca O’Neill details the lawsuit, and what this means for local creators.

To summarise, Dolce & Gabba are seeking approximately €450 million in damages from Diet Prada, stemming from a number of Instagram posts made by the account. The posts made criticised the fashion house’s 2018 advertising campaign for its “stereotypical and sexist depiction of a Chinese woman and revealed anti-Asian remarks originating from Gabbana’s Instagram account.”

Unsurprisingly, the news was not well received by its readers. The brand’s Shanghai show that was planned to go ahead days after the post was cancelled as a result. In conjunction, a public apology was posted on Dolce & Gabbana’s YouTube page. Consequently, the fashion house seeks damages of €8.6 million for the cancellation of the Shanghai show and a further €8.6 million for staff expenditures.

The Asian consumer boycott stemming from Diet Prada’s posts caused another €89.6 million to be claimed for Dolce & Gabbana’s lost revenue from Asian sales between November 2018-March 2019.

Sanicki Lawyers’ own Jonathan was asked about the legal ramifications of this increase in call-out culture on social media in an Australian context. It was noted that in Australia – Diet Prada would have two strong defences available to them in the event of a similarly made defamation claim, with those being the posts representing the ‘substantial truth, or an ‘honest opinion’. Despite this however, Xian adds that caution should still be exercised when posting perceivably inflammatory information on the internet.

“We have acted in many matters involving social media publications,” says Xian. “In most cases, people do not realise that social media publications carry the same weight, in the eyes of the law of defamation, as ‘traditional’ forms of publication, such as newspaper or television.”

“Facebook and Instagram are often seen as a ‘free-for-all’ environment, in which call-out culture prevails and freedom of speech is taken for granted. In reality, due to the ease with which information spreads on social media, defamatory publications made on social media can have far-reaching and highly damaging consequences, which should not be taken lightly.”

The benefits in having such social media accounts to increase inclusivity and hold the industry accountable are clear. However, the law still exists, and is making a proactive effort to keep up with the times.

The conclusion, as best stated by O’Neill herself:

Beware the new world (internet) order: call-out accounts are now king, and there may not be any legal way to silence them. Oh, and delete your old Tweets, for God’s sake.

See the full article here: https://fashionjournal.com.au/life/call-out-accounts-diet-prada/

Feel free to contact Jonathan at jonathan@sanickilawyers.com.au if you have any further questions or queries about defamation in general!

Filed Under: Defamation, Fashion & Design, Trademarks & Copyright Tagged With: , , ,

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Fashion trends change from year to year; season to season. Designers have the unique skill set to often predict and even set the next big trend with their designs. Unfortunately, not all of them are able to truly realise the benefit in doing so.

Independent designers often face the harsh reality of their original designs being reproduced without their consent before they get a chance to release it.

‘Jangle Visions’ owner, Claudia Diroma, claims to be one of these designers. Diroma has recently alleged renowned designer, Alexander Wang, of infringing her copyright. She claims her design ideas were stolen from her portfolio and incorporated in Wang’s latest campaign. Diroma will not only receive compensation for the stolen designs if she is successful, but may also be entitled to the $75 million profit Alexander Wang made from that campaign.

However, not every designer can afford to litigate in the event infringement does occur. In Australia, in order to take action to stop others from using a design, a design needs to be both registered and certified. For a design to be certified, it needs to be new and distinctive compared to other designs in the World and not available to the public at the time the application is made. As such, it is important for designers to secure the rights in their designs prior to releasing it to the market.  

At Sanicki Lawyers, we can provide you with the right legal support to protect your designs and, in doing so, prevent potential exploitation and provide redress for any infringement.

Feel free to contact Michelle Wong at michelle@sanickilawyers.com.au if you have any further questions or queries about design protection or fashion contracts in general!

Filed Under: Commercial, Fashion & Design, Trademarks & Copyright Tagged With: , ,

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Victorian commercial tenants are now able to request further rent relief from their landlords, under the new Commercial Tenancy Relief Scheme Regulations 2021 (the “Regulations”). The Regulations, released on 24 August 2021, come as welcome news for small business owners, amidst the numerous extended lockdowns.

Eligibility

To be eligible for rent relief, a tenant must show at least a 30% decline between:

  • its turnover during the “turnover test period” which is generally any 3-calendar-month period between 1 April 2021 and 30 September 2021; and
  • either –
    • its turnover during the “relevant comparison period”, which is the 3-calendar-month period in 2019 corresponding to the “turnover test period”; or
    • its turnover as calculated under one of the “alternative turnover tests”.

Alternative turnover tests explained

The alternative turnover tests are new tests, which did not exist under the previous Regulations (CTRS) from March 2020. These tests are applicable in certain circumstances, including where:

  • the tenant commenced trading on or after 1 April 2019;
  • a business acquisition, disposal or restructure by the tenant changed its comparison turnover;
  • the tenant’s business has irregular turnover;
  • the tenant is a sole trader or small partnership with sickness, injury or leave during the relevant comparison period; and/or
  • the tenant temporarily ceased trading during the relevant comparison period.

Commencing the request process

The tenant’s rent relief request must be accompanied by a statement setting out the tenant’s eligibility for rent relief and how its decline in turnover is calculated. In the statement, the tenant can also specify any circumstances that the tenant would like the landlord to consider in making a rent relief offer, which the landlord must then take into account.

Within 14 days of making the request the tenant must provide:

  • accounting record extracts, BAS statements, statements from an authorised deposit-taking institution and/or a statement prepared by a practising accountant; and
  • a statutory declaration made by the tenant or its authorised officer.

Once the tenant submits its rent relief request and all required supporting information to the landlord, the landlord must offer the tenant rent relief within 14 days.

At a minimum, such rent relief must be proportional to the tenant’s decline in turnover and at least 50% of it must be in the form of a rent waiver. This minimum requirement is the same as that under the previous CTRS regulations.

Other important provisions

Notable inclusions to the new Regulations include:

  • backdating of the rent relief to apply from 28 July 2021, but only if the tenant’s request is made by 30 September 2021;
  • a mandatory reassessment date on 31 October 2021, by which the tenant must provide the landlord with updated information, and any agreed rent relief will be reassessed;
  • further deferral of any deferred rent under the previous CTRS regulations until 15 January 2022; and
  • a prohibition on rent increases during the rent relief period, which the landlord can never claim.

Our team at Sanicki Lawyers can assist you in putting together your rent relief request, together with the necessary supporting information, so that it complies with the new Regulations.

To discuss your eligibility for rent relief under the Regulations, please do not hesitate to contact Jonathan Xian or Darren Sanicki.

Filed Under: Commercial, News Tagged With: ,

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When listening to a song, do you ever find that it sounds reminiscent of something, but you aren’t sure of what? Often this is because artists will recreate an existing musical composition in their own. In the music industry, this is called interpolation. For example, have a listen to Halsey’s ‘Without Me’ and you may find it sounds vaguely familiar to Justin Timberlake’s ‘Cry Me a River’. 

Olivia Rodrigo is no stranger to this having interpolated various songs on her new album ‘Sour’, including Paramore’s ‘Misery Business’ on her track ‘Good 4 u’. Rodrigo, in the first instance, did not recognise such interpolation, however retroactively provided credit to Paramore’s Hayley Williams and Joshua Farro after the album was released. This means that Williams and Farro will receive 50% of the song’s royalty earnings, currently estimated at a whopping US 1.2 million dollars!

When interpolating another song within a new one, it is important for artists to provide credit to the original composers, otherwise they run the risk of infringing copyright.

By not crediting Marvin Gaye’s ‘Got to Give It Up’ in the hit song ‘Blurred Lines’, Robin Thicke and Pharrell William’s were ordered to pay US 5.3 million dollars in damages to Gaye’s estate along with 50% of future royalties for copyright infringement.

That being said, interpolation is nothing to be scared of if you have the right legal support. When interpolation is considered and documented in a legal contract, it can be an incredibly attractive avenue for both new artists to create hit songs and publishers to receive on-going royalties for their existing songs. 

At Sanicki Lawyers we have years of experience and can tailor music contracts for your creative needs. Feel free to contact me if you have any further questions or queries about interpolation or music contracts in general!

Michelle Wong

michelle@sanickilawyers.com.au

Filed Under: Music & Entertainment, News Tagged With: ,

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Scarlett Johansson is suing The Walt Disney Company over its release of Black Widow. Directed by Australian Cate Shortland, the Film is the most recent addition to the Marvel Cinematic Universe.

The lawsuit comes after Disney premiered the film on its streaming service Disney Plus on 9 July, the same day it premiered in movie theatres.

Like many top actors and actresses, Johansson’s contract with Disney subsidiary ‘Marvel Entertainment’ included backend profit participation, which saw her compensation substantially tied to the box office performance of the film.

However, the Covid-19 pandemic has reshaped the way films are distributed, with streaming services becoming an increasingly popular medium for doing so. In response, A-listers are renegotiating the way they are paid for their work. Gal Gadot, and Patty Jenkins were paid $10 million after ‘Wonder Woman 1984’ was released simultaneously in theatres and on HBO Max, while Anna Kendrick and Justin Timberlake are seeking bonuses after ‘Trolls World Tour’ was released on video on demand instead of theatrically.

In her agreement with Marvel, Johansson claims that there was a guarantee that the Film would be premiered, like other Marvel Cinematic Universe films, exclusively in theatres. As far back as 2019, she had received assurances from Marvel’s chief counsel that ‘should the plan change…we would need to come to an understanding as the deal is based on a series of (very large) box office bonuses.’

Upon learning that Black Widow would be released in theatres and Disney Plus on the same day, Johansson attempted to re-negotiate her deal with Marvel, but Disney and Marvel were unresponsive.

Despite the film having the largest box office opening since the COVID-19 pandemic began – earning over $150 million globally on debut, Johansson alleges she has suffered up to $50 million of lost bonuses as a result of this release strategy. This is more than double the $20 million she initially received for the film.

The loss can partly be attributed to Black Widow earning $60 million on Disney Plus on its opening weekend. This revenue was raised by subscribers paying $30 to view the film on Disney Plus. These earnings do not contribute to the box office performance of the Film.

Further highlighting the impact of the simultaneous release, the Film suffered one of the biggest drop-offs ever for a Marvel title, with a box office decline of 67 percent by the second weekend. The National Association of Theatre Owners attribute this collapse in revenue to Disney’s release strategy, stating that simultaneous release is “a pandemic-era artifact that should be left to history with the pandemic itself.”

Currently, ticket sales stand at $319 million globally, putting the film on track to become one of the lowest-grossing Marvel films of all time. For reference, previous Marvel films have averaged nearly $1 billion over the course of their theatrical runs.

In a statement, Disney stated that there is no merit to Johansson’s filing, and called it a “callous disregard for the horrific and prolonged global effects of the Covid 19 pandemic”.

Overall, the case demonstrates the importance of a well-written, strictly worded contract. Additionally, it is significant for actors, producers, and streaming services alike. For example, the growth of Australian streaming companies Stan and Binge is reliant on securing exclusive premiers of shows and movies. The outcome will set a precedent for how such deals are negotiated in future.

Filed Under: Music & Entertainment, News Tagged With: ,