Intellectual property experts Kal Raustiala and Chris Sprigman point out that there is a burgeoning problem with copyright law. In the technical, legal arena, artists have a right to engage in the creation of new works and reap the benefits of their work. However, this is a limited right as copyright doesn’t protect ideas. Copyrights only protect an expression of an idea in a work and even then, certain uses of copyrighted works by others will qualify as fair use. Raustiala and Sprigman use the recent Jeff Koons case to argue that, in reality, copyright owners are using the sometimes absurdly large amount of damages that they may potentially recover as leverage to prevent others from engaging in a perfectly legal use of their works. Ultimately, this legal “bullying” may result in the stifling of creativity and may offend the general idea behind copyright law.
In addition to the Jeff Koons example, we can add another to the list. Recently, famed photographer David LaChappelle filed a copyright infringement suit against pop sensation, Rihanna for her risqué, new video. Though I haven’t been able to track down the actual complaint, Reuters summarizes the claim as follows:
In the suit, LaChapelle said Rihanna had appropriated eight of his images into the video, such as a shot where she is shown in profile against a blue background with a piece of candy on her tongue… LaChapelle said Rihanna’s video copied the “composition, total concept, feel, tone, mood, theme, colors, props, settings, decors, wardrobe and lighting” of his work.
After the Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), it is clear that photographs are subject to copyright law. LaChapelle’s claim is reminiscent of Mannion v. Coors Brewing Company, where a photographer sued Coors for copying a photograph of all-star basketball player Kevin Garnett for a billboard advertisement. The original image depicted Garnett in a certain pose “wear[ing] a white T-shirt, white athletic pants, a black close-fitting cap, and a large amount of platinum, gold, and diamond jewelry (“bling bling” in the vernacular).” While the actual copying of the image wasn’t a point of contention, the case focused on a more specific issue, whether the images were substantially similar. Ultimately, the court granted the defendant’s motion to dismiss by focusing on the nature of changes in each image.
Based on a side-by-side view of the images from Rihanna’s video and LaChapelle’s photographs, it is clear that there are some similarities. However, a court will probably focus more on the stark differences between the works. For example, they should take note of the differing color schemes, the different clothing donned by the subjects, and perhaps the biggest difference – LaChapelle’s product is a still photograph while Rihanna and her team created a bold, music video. Even if LaChapelle argues that the video is a derivative work of his images and therefore copyright infringement, perhaps Rihanna could combat this potential allegation with a fair use defense. Hopefully, there will be more on this once the actual complaint surfaces.
[i] The U.S. copyright law, which lives in Article I, Section 8, Clause 8 of the Constitution (also known as the “Copyright Clause”), grants Congress the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Please note: In addition to All Things IP, Telecomm, & Tech Law Blog, I am also a senior blogger for the American University Intellectual Property Brief ("IP Brief"). This blog post was first published on the IP Brief website.
