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Photographer LaChapelle can sue Rihanna over 'copycat' video

By Richard Butler on Jul 22, 2011 at 23:06 GMT

A US court has delivered a pre-trial ruling that photographer David LaChapelle's copyright claims against singer Rihanna can go to court. LaChapelle brought the case over apparent similarities between his photographs and aspects of the music video for Rihanna's single 'S&M.' The ruling from a district court in New York, gives an interesting insight into which elements of an original photograph are protected under US copyright law. Due to the nature of the content, our more squeamish readers (and those with limited interest in pop culture) may wish to look away now. (via PDN).

Click here to read about David LaChapelle's original claims.

Summary of the court's opinion

In a written opinion, Judge Shira Scheindlin of the Southern District Court of New York sets out the applicable laws and explains her reasoning for dismissing the defendants' attempt to have the case thrown out. The document first sets out the legal basis of the case, explaining copyright infringement and what aspects of a work are consider protected by copyright.

To prove Copyright infrigment, Scheindlin says: "'a plaintiff with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiff's work; and (2) the copying is illegal because a substantial similarity exists between the defendant's work and the protectible elements of plaintiff's.'

She goes on to make clear the definition of 'protectable elements: 'copyright protection may extend only to those components of a work that are original to the author.' This means: 'only that the work was independently created by the author . . . , and that it possesses at least some minimal degree of creativity.'

Crucially, this originality extends only to the particular expression of an idea, not of the idea itself. As such, it explains: 'elements of an image that flow naturally and necessarily from the choice of a given concept cannot be claimed as original.'

Additionally, she says: 'A photograph may be original in the rendition of a subject. Rendition concerns not "what is depicted, but rather how it is depicted." Originality in rendition may reside in the photographer's selection of lighting, shade, lens, angle, depth of field, composition, and other choices, such as manipulation of color balance, saturation, or contrast, that have an aesthetic effect on the final work.'

Particularly pertinently in this instance, Scheindlin explains: 'A photograph may also be original in the creation of its subject, when a photographer orchestrates the situation that is photographed, rather than simply photographing a ready-made scene or thing. Thus, "if a photographer arranges or otherwise creates the object that his camera captures, he may have the right to prevent others from producing works that depict that subject."'

The test for similarity is a question of whether 'an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.' And this involves 'comparing the contested design's 'total concept and overall feel' with that of the allegedly infringed work.'

The LaChapelle case

In this instance, the document says, LaChapelle attempts to reinforce his claim of originality by stating he 'does not "simply observe a pre-existing scene and mechanically record it." Rather, he "selects and orchestrates the themes, props, settings, wardrobes and colors" of his photographic subjects, while also controlling the "angles, poses and lighting.'

Scheindlin reached her decision by considering a sample of the eight photographs that LaChapelle claims were imitated in the video. An example of her assessment is as follows:

'The Video's "Pink Room Scene" and LaChapelle's "Striped Face" both feature a choreographed S&M-inspired scene of women dominating men in a fanciful domestic space. From this choice of subject it follows naturally that both works depict women in a living room with a man bound on the floor. Because these subjects flow naturally from the chosen idea, they are not protectible and are not probative of substantial similarity.'

'Striped Face' by David LaChapelle (© David LaChapelle)
'Pink Room Scene' from Rihanna's 'S&M' video (© DefJam)

'However, it does not necessarily follow that both works feature: hotpink and white striped walls; two single-hung windows in the middle of the back wall; windows with glossy hot-pink casings and interior framework, with opaque panes exhibiting a half-vector pattern of stripes against a yellow background; a
solid hot-pink ceiling; hot-pink baseboards; a hot-pink couch under the windows; women wearing frizzy red wigs; a woman posed on top of a piece of furniture; black tape wrapped around a man; and a generally frantic mood. Moreover, it does not necessarily follow that both works be well-lit and intensely saturated, with all of the details in sharp focus and almost no shadows.'

Although the defendants point out several differences between the video scene and LaChapelle's photograph, Scheindlin points out that: 'by definition copying need not be of every detail so long as the copy is substantially similar to the copyrighted work.'

In this instance, the defendants had also asked for the case to be dismissed on the basis of 'fair use.'

The concept of 'fair use' says: 'The fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research, is not an infringement of copyright.'

The defendants said if they used LaChapelle's protected material, it was to: 'critic[ize] how Rihanna is treated by the press, and comment on her relationship with the media.' However, the judge described this argument as 'misguided,' saying: 'Commenting on and criticizing Rihanna's treatment by the media is unrelated to the Photographs and does not require copying protectible elements of LaChapelle's work.'

As such, the move to dismiss the copyright infringement claim was denied. Two other claims under other laws in LaChapelle's original case were dismissed as essentially being re-statements of the copyright claim.

Comments

Total comments: 114
12
commiebiker
By commiebiker (Oct 30, 2011)

It's an obvious rip-off. In all artistic fields, the hardest thing to find is someone with an original vision...that's why it is valuable and should be protected

1 upvote
Thomas Kachadurian
By Thomas Kachadurian (Oct 22, 2011)

I'm not buying it. If this was done in a movie it would be an Homage. Half of the hot cult movies out there could be sued for "stealing" from their fathers.

This is substantially different. Photographers may not like it, but it's more like a literary reference than theft.

LaChapelle should be flattered and shut up.

Photographers should be protected, but pushing it too far will hurt us all.

Tom

0 upvotes
Walter Rowe
By Walter Rowe (Oct 25, 2011)

If you think about those movie scenes where homage or mockery of a past movie is made, they never "copy" the original scene in a very substantial way. It is implied, but never duplicated.

And a scene in a new movie that is making a statement about a similar scene in a past movie may fall under "fair use". Rihanna's video wasn't making a statement about DLP's photograph. That is the basis for why the judge said their "fair use" argument was flawed.

0 upvotes
LIGHT SABRE ELTERIBLE
By LIGHT SABRE ELTERIBLE (Oct 22, 2011)

I agree!!!!!!!!!! As much as DLC's work is not my cup of tea it is his work. Sarcastic comments about bowls of fruit and copywriting sunsets are quite frankly imature and show signs of poor education and lack of morals! Unlike a sunset or a bowl of fruit that can be shot in very different places and settings, DLC dreamt up this concept and contrived the setting the way he wanted it. Although there are differences Rihannas video is a blatent copy of DLC's work! And if they had simply asked for permission we would not have been talking about this right now. Steeling is steeling! It is that simple!

0 upvotes
absentaneous
By absentaneous (Oct 22, 2011)

please explain me how someone shooting a still life on a table that includes fruits can't dream up his concept and contrived the setting the way he wanted it? a still life can be as much arranged as the photo in this case. the judge also clearly said that the idea of a choreographed S&M-inspired scene... is not something the court can consider original. the problem here is that the court claims only original ideas can be copyrighted at the same time I still don't know what is the original element that was copied because at least this article don't points that out. something being similar to something else is from the reasoning of the judge itself not enough to claim copyright rights. it has to be original first of all. but what was considered that original aspect of la chapelle's work here? that's what I am asking and if you can answer me would be great if not you should rather not pass comments on something you didn't even understand.

0 upvotes
Bob Meyer
By Bob Meyer (Oct 25, 2011)

If you actually read the excerpts from the judge's decision, and can't figure out what the "original" aspects of the work are, then I'm afraid you'll never understand this. But I'll give you a of hint:

"'However, it does not necessarily follow that both works feature: hotpink and white striped walls; two single-hung windows in the middle of the back wall; windows with glossy hot-pink casings and interior framework, with opaque panes exhibiting a half-vector pattern of stripes against a yellow background; a
solid hot-pink ceiling; hot-pink baseboards; a hot-pink couch under the windows; women wearing frizzy red wigs; a woman posed on top of a piece of furniture; black tape wrapped around a man; and a generally frantic mood. Moreover, it does not necessarily follow that both works be well-lit and intensely saturated, with all of the details in sharp focus and almost no shadows.'"

0 upvotes
LIGHT SABRE ELTERIBLE
By LIGHT SABRE ELTERIBLE (Oct 28, 2011)

Thank you BOB! It seems some people dont like to read all the facts before making stupid comments. Its actually amazing how some people on this forum don't get the concept of creative/intellectual property. What stuns me even more is how some people cant (by simply looking at the examples above) see the very obvious similarities between Chapelles work and the blatent copy that is Rihannas music video. As a musician and photographer, it is trully sad that todays society is so used to hearing and seeing untasteful and poor reproductions of other peoples work that the concept of theft seems to be very difficult to grasp. It trully cheeses me off that people are so quick to defend someone who has clearly used soebody elses work to financially enrich themselves.

0 upvotes
LIGHT SABRE ELTERIBLE
By LIGHT SABRE ELTERIBLE (Oct 28, 2011)

To make my final point. Had Chapelle never taken this "striped face" photo, Rhihannas music video would never have even closely resembled the content displayed above. I guarantee it, not even closely! So dont you think some creative protection is therefore fare????????????????

0 upvotes
MaikeruN
By MaikeruN (Oct 22, 2011)

I am starting to hate the DP community more and more. As fellow photographers we should be glad to see that our creative work can be protected, not comment with sarcasm and disgust. Too many people here complaining about all the wrong things.

2 upvotes
absentaneous
By absentaneous (Oct 22, 2011)

well, how about if it happens that your "creative work" would be a bit similar to someone else's "creative work" without you even knowing it? then you'd be screwed. so, the protection is necessary in both directions. from reading this article it's still not clear to me what were those elements which are protected by the copyright in this case. it only talks about "similarities" that one can spot. because take an example a still life shot. someone takes a shot of some fruits on a table. I mean that's like how still life shots are often done. so does that mean I can't take a shot of some fruits on a table anymore because that would be damn similar to any still life shot of fruits on a table?

1 upvote
Gionni Dorelli
By Gionni Dorelli (Oct 22, 2011)

"well, how about if it happens that your "creative work" would be a bit similar to someone else's "creative work" without you even knowing it?"
Well that was not the case.
DLC work was deliberately taken as an 'inspiration", it was not by accident.

1 upvote
Bob Meyer
By Bob Meyer (Oct 25, 2011)

absent, you really need to do some research into copyright law before you make any more posts in this thread. First, someone could only challenge your photo of a bowl of fruit if they actually hold a copyright on a similar picture that has original, creative elements. At this point, it's doubtful anyone could get a copyright on a basic still life of a bowl of fruit on a table. Second, let's say someone gets a copyright on a photo of a bowl of fruit nestled gently in a pile of camel dung, and that that fruit is of a particular type and arrangement that's never been seen before (perhaps alien, intelligent fruit from Mars).

Can you photograph a bowl of alien fruit in a pile of camel dung? Yes you can. What you can't do is PROFIT from that picture. I can go out and attempt to duplicate any photo protected by copyright, as long as it's only for my own viewing. But I can't turn around and sell that image as my original creation.

0 upvotes
mike kobal
By mike kobal (Oct 21, 2011)

looking at DLC photograph and R's S&M still grab, it is quite clear David's "essential world" has been copied, re-created and re- built, this is not a scene you can just "find" it only exists in DLC photograph. R should have just hired him to shoot the video, DLC is a very accomplished video director!

Comment edited 3 times, last edit 6 minutes after posting
1 upvote
absentaneous
By absentaneous (Oct 21, 2011)

I don't quite get it. first the judge explains what can be a subject of copyright protection by saying: "'copyright protection may extend only to those components of a work that are original to the author"...etc. so, which are actually those components of a work that are original to the author when at the same time the judge says: "'The Video's "Pink Room Scene" and LaChapelle's "Striped Face" both feature a choreographed S&M-inspired scene of women dominating men in a fanciful domestic space. From this choice of subject it follows naturally that both works depict women in a living room with a man bound on the floor. Because these subjects flow naturally from the chosen idea, they are not protectible and are not probative of substantial similarity.'" so, if the idea of a S&M-inspired scene of women dominating men is not the issue then what is? the way women dressed? the size of the room? the room having two windows? the room having a door? so, what here is original to the author?

Comment edited 46 seconds after posting
0 upvotes
Walter Rowe
By Walter Rowe (Oct 25, 2011)

The judge is saying the "concept" isn't copyrightable - a woman dominating a man in a fanciful domestic space". What is copyrightable is the specific representation of that concept - the arrangement of the elements, the colors, the wardrobe, the style in the specific photograph from DLC is almost entirely duplicated in R's S&M video.

0 upvotes
Bob Meyer
By Bob Meyer (Oct 25, 2011)

You really are dense, aren't you Absent? The judge's decision very clearly spells out the things she believes are protectable. I copied that paragraph above, but maybe you should try re-reading the judges decision a little more carefully.

0 upvotes
village-voice
By village-voice (Aug 7, 2011)

it's the "show business" , they know what they supposed to do. I don't know the details but 1 (one) thing I do know : the work of any artist (a photographer for example or a singer..for anopther example) can't be copied without a permission (I mean money) . I thought that they (the singer's people) knew that already.
no?

oh well ...

0 upvotes
sagebrushfire
By sagebrushfire (Jul 30, 2011)

While copyrights do protect "intellectual" property, I don't think there's complete validity to the idea of "elements you bring into a picture." First of all, Photography of a specifically designed set and photography of a natural scene are both equally protected. What's protected is the actual final result of the work; not the journey there, not the props, not the angles ... those are subjective design concepts.

Based on my interpretation of the law, as long as you're not taking a picture of an ACTUAL photograph, you are not infringing on someone's copy rights. The video does not contain any ACTUAL piece from the photo in question, which is the object protected by copy rights. A good example would be photos of the Cistine Chapel. While taking your own photo would not infringe on anyone's rights, messing with another photographer's photo is because the copyrighted work is that person's exact photo, not the painting in it. Proving that would be difficult but it's technically right.

0 upvotes
Walter Rowe
By Walter Rowe (Oct 25, 2011)

The Cistine Chapel isn't a good example because the artwork there is "public domain" because of its age. There is no IP treaty in all the world that still protects that work.

Imagine you see a photograph created in a studio where the photographer made all the design choices, arranged all of the elements, chose all the colors, made all the wardrobe and styling selections, orchestrated all the lighting, and chose the lens and camera height to give a desired angle of view from a given vantage point. If you recreated that, took your own photographs of it, and marketed it as your original work, you in fact have infringed. There is case law precedent backing this up. Your setup does not have to be a 100% exact duplicate. It only has to be substantially the same to the point where it affects the value of the original photographer's work. That is the statement that the judge is making in this case.

0 upvotes
hdc77494
By hdc77494 (Jul 28, 2011)

There was a copyright vase here inTexas several years ago between two restaurant chains. One sued the other for stealing building design elements, color schemes, etc. The term used was trade dress. The idea stealing company had to change several elements of their design, and eventually went out of business.

Someone here mentioned the iconic Obama poster. While Obama is a public figure and his image is subject to Fair Use, the copyrighted AP photograph the artist used was not. I believe he lost his case.

0 upvotes
Walter Rowe
By Walter Rowe (Oct 25, 2011)

Correct.

0 upvotes
hdc77494
By hdc77494 (Jul 28, 2011)

What's shocking to me are the number of photographers who have no comprehension of copyright law, and worse, don't seem to recognize the elements of their own work that are original and protected. While anyone can copy Ansel Adams style, he didn't create the scenes he photographs, they exist on their own while we as photographers interpret them. In this case, LaChapelle had an idea and selected every element of his staged photograph to convey that idea. Fair use doesn't protect Rihanna because her video is a commercial piece of art. You can't steal someone else's idea to make money, you have to pay the creator in order to use their property, including intellectual property. Yes, everything in the room was created by someone else, however LaChapelle used those things in a new and different way in creating his art. If Elle magazine lifted an entire set design from a Vogue fashion shoot for their magazine, it would cost them millions. The elements YOU bring to a work can be protected.

4 upvotes
Michaels7
By Michaels7 (Oct 21, 2011)

Ditto. Photographers do need to get informed on copyright and concepts that they bring to the table.

0 upvotes
Bob Meyer
By Bob Meyer (Oct 25, 2011)

While I agree with the general thrust of your post, this statement:

"You can't steal someone else's idea to make money, " is simply not true. There's nothing to stop you from making money off a satire of a copyrighted work. It's done all the time. Fair-use doesn't mean free.

0 upvotes
Bryan Costin
By Bryan Costin (Jul 27, 2011)

It's a bad precedent. Even if the scenes were visually identical, there's absolutely nothing wrong with making a new photo/video/drawing/whatever that looks like someone else's photo/video/drawing/whatever. The photographer owns the original work that they created. They don't own the idea behind a photograph, or the scene you built, or the landscape you pointed your camera at, or the style you've cultivated. All you get is what you make. You don't get to stop other people from making it themselves.

0 upvotes
MadsR
By MadsR (Aug 2, 2011)

The problem here is that the scene is simply copied. The art-director looked at LaChappele's picture and said "I like that" then copied the setup to shoot a video. That is illegal, since the scene is created and designed (which represent copyright, it is original) if LaChappelle had taken the picture in an existing room/cityscape/landscape and the art-director of Rihana's video chose that same location, nothing illegal had happened.

0 upvotes
Brek01
By Brek01 (Aug 11, 2011)

I don't think it is a bad precedent, the concept was the photographers, the 'industry' that is built around the singer has chosen to steal the concept to make their 'artist' look 'better' for want of a better word, simply to generate more income for themselves, why not approach the photographer and say we love your work, can you come up with a concept for the video???? As photographers we should be supporting, not condemning.

0 upvotes
Michaels7
By Michaels7 (Oct 21, 2011)

@Breko. To answer your question. You already answered it. It's to make the singer look better, but to give credit, pay and acknowledge the originator or influenced would take away from the singers creativity. Or lack of. It's the aesthetic part that is just as strong as the singing that define a singer's image. Yeah she was better off vs. looking foolish in the end.

0 upvotes
Sdaniella
By Sdaniella (Jul 27, 2011)

Copyright the entire visual spectrum . . . watch out, you cannot use MY colors... in any way, shape or form, altered, or not, etc

0 upvotes
MadsR
By MadsR (Aug 2, 2011)

Get a grip. What have been done here is the art-director have setup a construction to mimic someone else's work. THAT is illegal in copyright...

If LaChapelle had shot his picture in a forest that can't be copyrighted. Also if the video had not been such a direct copy of the idea and setup of the picture this case would never happen.

It is still up to a jury to see if the work is "too much" of a copy (I have made my mind up, just by looking at it) If you setup that same kind of room with those styled up ladies and took the shot, you too would break copyright. The same if you copy any other picture.

This is not "You used the same color room" or "you used the same type of windows" etc... it is the combination... He COPIED the setup to shoot a video in it, without getting the original authors concent.

0 upvotes
SNGX1327
By SNGX1327 (Aug 2, 2011)

i am going to copyright contrasting colors. orange + blue? that's my concept!!!

0 upvotes
Michaels7
By Michaels7 (Oct 21, 2011)

I just love how some of you try to simplify this. It's more than just about having the tools. It is what was done with those tools that help to create the concept in the artist's mind. I'm not a fan of David's work. But being in the industry myself, you know about him and you understand concept and copyrights.

0 upvotes
MaikeruN
By MaikeruN (Oct 22, 2011)

did you create the visual spectrum? i thought not

0 upvotes
javiair
By javiair (Jul 26, 2011)

Just to let all of you know..I have copywrited sunset pictures..anyone showing a sunset or even the sun will be sued for stealing me "vision" ha ha..
I hope this photographer gets nothing.

3 upvotes
MadsR
By MadsR (Aug 2, 2011)

The sun is the same to everyone, so you can't copyright it... If you notice, there is no "natural" elements to the shoot (or the video that copied it) what is the breach here is the complete copy of the original work. So this is not "somewhere" you can go and shoot and get this... It is also not just a copy of the room (which would not constitute a breach IMHO) it is a copy of the work in it's entirety, colorscheme & texturetype (stripes in the same colors) the same props (windows and furniture) in the same locations, and similar looking and dressed models...

A more clear copy of someone else's work you have to look a long time for.

1 upvote
MaikeruN
By MaikeruN (Oct 22, 2011)

did you put the sun close to the horizon and named it a "sun set"? i thought not

0 upvotes
Bob Meyer
By Bob Meyer (Oct 25, 2011)

These people just don't get the concept of "originality".

Javier, if you find a way to turn the sun green, and photograph it, then you might be able to copyright photos of a green sunset. But otherwise, you can not claim any ownership rights to the sun or pictures of it.

0 upvotes
lcsjk
By lcsjk (Jul 26, 2011)

How much can you plagerize and still call it your own work? The photographer used the sunburst from "The Yellow Submarine" or early MTV videos. The room layout is "Better homes and Gardens" and also from basic theater set designs, the clothes are from various companies that sell Lingerie, the Hats are from fashion magazines, the wallpaper design is straight from wallpaper catalogs, and, obviously, the bound guy on the floor did not originate with this photographer. Basically, the only unique things thing that really ties these pieces together is the use of the sunburst in the two windows, the red ceiling and the pink theme. The video wallpaper is from Dr. Suess, and most of the other things would not even be close except for the windows. I think the video designer saw the photo, but perhaps most of the other things mentioned. The photographer will have a hard time proving that he did not copy his ideas from somewhere else, thus violating his own claims of originality.

0 upvotes
MadsR
By MadsR (Aug 2, 2011)

It is the combination of these elements.

You can't copyright a square or rectangular room, it is too common, you find it everywhere, neither can you copyright a room with pink-striped wallpaper (You can buy the wallpaper and put it in any room with parallel walls) you also can't copyright the girls in lingerie as that is also common. What you copyright here is the complete work, using that "normal" room with these girls placed like that wearing that in these colors with that hair and these props.

And that is what the art-director IMHO copied... It is not a setup you find "in the wild" not somewhere you can go and shoot, you have to build it and consciencely decide on colors (matches and contrast) placements of props and people etc... So when you take a photo and setup everything the same way and shoot that setup, you infringe on the original idea of the creator.

0 upvotes
MaikeruN
By MaikeruN (Oct 22, 2011)

but is it obvious? i thought not

0 upvotes
pixsee
By pixsee (Jul 26, 2011)

Ideas, Ideas, Ideas, Money, Money, Money. What happened to emotional content? Is an image just qualitavely evaluated on its ideas, concepts or by monetry sales? Isnt there an emotional content that is, through the artist (Photographer, Dramatist, Musician, Painter, Film maker etc.), conveyed only by the image on its own terms to the spectatator who also contributes to the final feeling inherent in the image. The Feelings and emotional aspect may possibly be of a kind only only coveyable by "Art work". This may be to much of a social concept for our consumer orientated world, but I think it is still at the heart of appreciating any form of "good" art and negates plagerism or copying. The question is not is it a good or bad copy or whether it is a copy at all. Is it great Art?

1 upvote
Peter Mackey
By Peter Mackey (Jul 26, 2011)

Very interesting indeed.
When I did my Diploma of Photography it was standard practice for students to research the masters and then try and create a similar look of photo using subject, location, POV, lighting etc. Incorporating one or all of these elements.
Plagiarism this it is not. All learning starts with some form of copying, from there in the creative world it takes its own course.
In the case in question however it is not a school project, it appears to me to be a form of commercial plagiarism designed to make money from the end result.
DL is one of the modern day greats, he should rigorously defend his intellectual property.

0 upvotes
Bob Meyer
By Bob Meyer (Oct 25, 2011)

Education does fall under fair use. And even if you did copy something protected by copyright, you won't really violate that copyright until you try to make money off it.

0 upvotes
rkny
By rkny (Jul 26, 2011)

Oh, and it's no surprise that DL is suing. Take a grossly egocentric eccentric whose salad days are waning and a current star whose career is still on the upward arc who says or does anything remotely resembling anything the former ever did, and you will see a lawsuit.

Larry Page, CEO of Google, said it best...those who can not innovate litigate.

0 upvotes
Motes_Art
By Motes_Art (Jul 26, 2011)

That's the most ridiculous application of that quote I have heard yet. What Mr. Page was trying to convey is that if you make money from your own innovation in today's over-litigious society people will sue you to try to cash in on your success. I think a slightly different principal applies to Rihanna and most current pop singers. They cannot innovate, so they have to steal others' work. You hear it every day in the recycled beats and sampled tunes of today's pop "music". Pathetic.

0 upvotes
MadsR
By MadsR (Aug 2, 2011)

So you basically say that David LaChappelle is not an artist and creator?

I just want to get that straight...

0 upvotes
Bob Meyer
By Bob Meyer (Oct 25, 2011)

Hmm. I think the person who failed to innovate here is the video director, not the photographer.

Perhaps DPR should publish a series of articles on copyright law, so that people have the opportunity to know what they're talking about before they post here?

Nah, 75% of the posts at DPR would go away if people actually followed that guidance.

I am amused by the rantings of people who have never been to law school, never read up on copyright law, yet think they know more about the subject than the judge.

0 upvotes
rkny
By rkny (Jul 26, 2011)

Dude's got nerve.

http://www.askart.com/AskART/assets/artist/11140534/David%20LaChapelle.jpg

0 upvotes
Kevin Purcell
By Kevin Purcell (Oct 21, 2011)

Nice catch.

So is it parody (protected?). Or just copying the same (similar?) elements from Warhol's prints of Monroe? Or is the case irony? Or is it for the money?

The Estate of Warhol will be following this case closely I suspect :-)

0 upvotes
NGGurton
By NGGurton (Jul 26, 2011)

It matters not if you disagree with Judge Scheindlin. It matters not if you feel the two pieces in question are completely identical or dissimilar. And it definiitely does not matter if you like dislike LaChapelle's work. What is important, is the fact that nearly since it's inception, photography has been a victim to other artists working in other mediums, who use our images and our very ideas as inspiration for their own work, without fear of consequences for their actions. Even the U.S. Supreme court, in a completely seperate ruling, declared that photography is not worthy of the same protection as given to literary works or musical composition. ASMP, PPA, APA, NPPA, and a variety of other organizations have worked tirelessly to protect the rights and the images of professional photographers, and still we are vulnerable to outright theft by others. Photographers, both amateur and professional, need to work together to end this practice.

1 upvote
NGGurton
By NGGurton (Jul 26, 2011)

Correction. It was a lowercourt, on a completely seperate issue that suggested photographs did not meet the criteria of being protected like that of literary works or songs written by musicians composers, etcx. Sorry for the error.

1 upvote
PhotoSaur
By PhotoSaur (Jul 25, 2011)

While no real big fan of LaChapelle's staunchly inbred and creatively numb work, I do respect his originality and productivity. For content I prefer Mapplethorpe and Witkin for photographic veracity and seriousness of effort to provoke, both virtues Lachepelle assiduously eschews. His challenge to the cultural zeitgeist is predictable and without memorable pique (spice, ironically)

Rihanna commits a creative sin much worse in the effort to create work "inspired by" or "derivative of "and that is laziness. This is a common trait of those who wish to phone-in their creative work, –the failure of imagination. What is REALLY funny is that Lachapelle is not all that interesting to begin with. He is pretty much a John Waters Wannabe, but pulls it off. He does with John Waters work what Rihanna could not do with his work! Boldfaced copying is and should be illegal, it is base in it's very intent. This unimaginative copycat ought to be spanked hard.

Rex

0 upvotes
filmluvr
By filmluvr (Jul 25, 2011)

The more you look, the more they're alike. If the plaintiffs can't prove this is all part of a larger body of work, perhaps even a preexisting genre, they're sunk. Glad to see a photog pursuing his rights for once...

0 upvotes
Kabe Luna
By Kabe Luna (Jul 25, 2011)

Awful song and video, despite the obvious copying of Dave LaChappelle's visual style, which, by the way, still wasn't enough to get me to linger past the first 10 seconds of the first chorus. People actually *want* to watch and listen to this stuff?

Incredible.

0 upvotes
xiod_crlx
By xiod_crlx (Jul 25, 2011)

upper photo is $1M work???

WHOA! 8-0

0 upvotes
tricky photography
By tricky photography (Jul 25, 2011)

LaChappelle should get creditted as inspiration.

It is quite clear their work inspired the video and to not credit the artist is plain offensive. Whether money or copyright law or anything else should come into it is another question that the courts will likely decide is a waste of time in the long runanyway but in the mean-time the artist is getting their name attached to the work as they should've done in the first place. imo

1 upvote
marianco
By marianco (Jul 25, 2011)

This case is bull.

The photo and the video are very different. Period.

0 upvotes
tricky photography
By tricky photography (Jul 25, 2011)

Your comment is bull.

The photo and video share many similarities. Period.

5 upvotes
Higuel
By Higuel (Jul 25, 2011)

Agree

0 upvotes
VividExposures
By VividExposures (Jul 26, 2011)

I am with you marianco. The photo and the video are VERY different. This case is ridiculous imho.

0 upvotes
JackM
By JackM (Jul 26, 2011)

If you don't see how this part of the video is a blatant, overt rip-off of the photo, you're probably not very good with a camera either.

2 upvotes
MadsR
By MadsR (Aug 2, 2011)

OK, where in do you find the differences?

Just to name the similarities so you can counter with where you find reason to say the video is an original piece of art.

Room size, decoration, colors and angle of shot are near-identical.
Props are ńear-identical and placed identically.
Female models are similar, they are dressed and styled near-identical and wearing identical style clothing. Only difference is the main model of the shoot is pulled more forward to emphasize her even more.

0 upvotes
Bob Meyer
By Bob Meyer (Oct 25, 2011)

You can't just compare one frame of the video to the photo and say they're "different." You need to look at the entire video, and then the similarities become extremely obvious.

0 upvotes
NineFace
By NineFace (Jul 25, 2011)

really wanna know who will win? :)

0 upvotes
Laurentiu Todie
By Laurentiu Todie (Jul 25, 2011)

I have a hint that this case won't go to the Supreme Court,
but wish it did,
to publicly define a wildly unknown legal issue
(one way or another)

most photographers, because of their political agendas didn't understand a much simpler case

http://www.outsidethebeltway.com/fairey_admits_obama_hope_poster_based_on_ap_photo/

0 upvotes
dobeonguard
By dobeonguard (Jul 25, 2011)

This case is a joke and it is because of cases like this that make us the laughing stock of the world. I hope this case doesn't get much further, but by following this judges opinion porn would be the utmost of copyright infringement.....

0 upvotes
bradbunnin
By bradbunnin (Jul 26, 2011)

As a matter of fact (and I speak as a recently retired publishing lawyer), European copyright law is even more restrictive about one person using another's work than ours is. In any case, the underlying themes and the striking similarity of detail between the original and the copy provide plenty of evidence to support the trial judge's verdict. I doubt an appeal will succeed, and there's very little reason to think the US Supreme Court will find anything worth its time.

0 upvotes
Bob Meyer
By Bob Meyer (Oct 25, 2011)

How you make the leap from this image to copyrighting porn is beyond me. Creating an entire scene, and have sex, are hardly the same thing.

BTW, Porn is copyrightable, as is any other photo or film, to the extent it is new, creative, and has original elements. Just as I can't make a film that exactly follow the plot line of Ben Hur, neither can I make one that exactly follow the plot line of "Debbie does Dallas."

0 upvotes
Nerkdergler
By Nerkdergler (Jul 25, 2011)

As an intellectual property lawyer, I'd be mightily surprised if this action were successful. Imitating general design concepts or ideas is not the same as copyright infringement, although as we know it *is* the most sincere form of flattery :)

That is not to say the photographer won't get some kind of 'go-away' settlement, but if it goes to judgement no court is going to hold that he has monopoly rights over a vague design concept. As others have pointed out, if that were the case his predecessors in this genre would then have to sue him for infringing their rights!

2 upvotes
Sammy Yousef
By Sammy Yousef (Jul 25, 2011)

I can immediately see the similarity too. One is revolting and ridiculous. And so is the other. This is like a copyright claim for something you left in the toilet after having way too much curry. I weep for the future.

2 upvotes
Lightshow
By Lightshow (Jul 25, 2011)

I agree some elements have been copied, but it's not like every element was original to LaChapelle in the first place, I've seen similar pink party rooms before in videos, maybe he copied them, s&m themed imagery is far from new.

At most he should get a small settlement for the video not including "Some imagery inspired by LaChapelle"

0 upvotes
mngsmt
By mngsmt (Jul 24, 2011)

Pfff. And LaChapelle ha copied legions of other photographers such as Les Krims.

1 upvote
Bob Meyer
By Bob Meyer (Oct 25, 2011)

And they can sue him, if they feel the same way as you do. That doesn't invalidate his lawsuit.

If you steal from someone else, it doesn't make it legal from a 3rd party to steal from you, whether that theft is of tangible property, like a car, or intellectual property, like a photograph.

0 upvotes
CharlesGoodwin
By CharlesGoodwin (Jul 24, 2011)

This is a district court ruling of the most preliminary sort -- it's just one judge's determination that the case shouldn't be tossed at the earliest procedural stage. It's a long, long way from a judgment. Given the incentives of both sides have to use copyright law to squelch expression, one might wonder how vigorous a defense the record company's counsel is making. In any event, while the judge in this case is enormously intelligent, she also has a high reversal rate at the court of appeals. In short, people, it ain't over yet, it's barely started.

1 upvote
Laurentiu Todie
By Laurentiu Todie (Jul 24, 2011)

This court case is almost as important in educating people who can and want to read about what art is, as the Brancusi case of almost a hundred years ago.

http://bellevuecollege.edu/artshum/materials/art/Tanzi/Summer04/203T/BrancusiCourtCase.htm

0 upvotes
dave gaines
By dave gaines (Jul 23, 2011)

Clearly the video is a duplication of the photograph. They copied the photo as closely as they could, down to the shape of the room, positiion of doors windows and furniture, radiating colors in the windows, colors and stripes on the wall and number and appearance of the players. The color of the "singer's" hair. The idea for and creative portrayal of S&M is copied. There is nothing original in the DefJam video that can't be found in the David LaChapelle photograph.
If my work were copied like this I'd sue. If others have gotten away with this plagersim in the past it is no resaon to tolerate it today. Just because copyrights have been infringed upon in the past doesn't mean it's okay for anyone to commit the crime today
In the digital age when copying is so rampant and easy, the penalty should be stiff. Finding and catching the thief is very hard. The penalty should be high.

2 upvotes
DiscreteCosine
By DiscreteCosine (Jul 23, 2011)

Digital media is easy to copy, but that's not the issue here. There's nothing "digital" about this case. The set designer or director just saw the photo and created a very similar set. The case here is plagiarism (a specific type of copyright infringement).

And copyright infringement isn't theft (the original photo wasn't stolen, no one actually lost any tangible property). In legal terms it's closer to forgery.

2 upvotes
CKDexterHaven
By CKDexterHaven (Jul 23, 2011)

This isn't new. I always fail to comprehend the seemingly variable/fluctuating laws on this subject. When Warhol copies soup cans, that's "fair use?" When Peter Beard cuts out actual printed matter and pastes it into his composites, that's "fair use?"

With regard to video, umpteen years ago, when Madonna made a video that VERY DELIBERATELY employed imagery that directly 'referenced' those of photographers such as Horst, was there similar backlash? Did she pay royalties?

In my estimation, the Madonna thing was a 'tribute.' All i can figure now is that LaChappelle is so unworthy of tribute that it must be considered 'theft.'

http://madonnarevelations.blogspot.com/2008/07/horst-phorst-shes-copy-machine.html

1 upvote
Richard Butler
By Richard Butler (Jul 23, 2011)

I believe 'fair use' has a very specific meaning, so you can't assume that a particular usage was fair use, simply because the work exists and doesn't appear to have been the subject of legal action.

With regards Warhol, the MOMA website showing the picture suggests the work incorporates elements licensed from the Campbells Soup company:

http://www.moma.org/collection/object.php?object_id=79809

1 upvote
elester
By elester (Jul 24, 2011)

excellently put

0 upvotes
DiscreteCosine
By DiscreteCosine (Jul 23, 2011)

It seems that some of the people posting here think that if I publish "Lord of the Bracelets", a story about how a Nobbit named Froto destroys Souron's One Bracelet, that wouldn't count as copyright infringement, because it wasn't "an exact copy".

Read the ruling (or even this article, which you clearly didn't). For a change, this judge actually had a clue about artistic plagiarism, and how it can be objectively demonstrated.

8 upvotes
costinul_ala
By costinul_ala (Jul 24, 2011)

And if you design a pair of jeans, put on the market you get an army of Armani layers at your door claiming copyright infringement?
OK, they did still the idea, but copyright infringement!?
Maybe "Lords of the Rings" was a copy of a photo too. Lets have a look in our galleries, maybe there is a jackpot coming our way.

0 upvotes
Higuel
By Higuel (Jul 25, 2011)

As fun as your argument is :D
I must agree with DiscreteCosine!! :)

0 upvotes
DiscreteCosine
By DiscreteCosine (Jul 23, 2011)

Striped pink walls and two windows with yellow rays (not to mention the same composition, lighting, etc.) don't happen by chance and are far from being "obvious" choices for S&M. The set designer was clearly trying to copy the look of Chapelle's work. The fact that he didn't copy it exactly shows that he was also trying to hide it.

If they had claimed it was deliberate (parodying a cultural icon), and had made an attempt to obtain permission, they might have been able to get away with it (even if permission hadn't been given). Instead, they tried to say "it wasn't really that similar" (thus killing that line of defense) and that it was all about "the way media treats Rhianna", which is just nonsense.

Naughty set designer and incompetent lawyer.

4 upvotes
inevitable crafts studio
By inevitable crafts studio (Jul 23, 2011)

hahaha this chappelle guy cant be serious^^ dpreview is becoming a strange site, the last interesting photo news where month ago

0 upvotes
ffnikclif
By ffnikclif (Jul 23, 2011)

And you wonder how the saying "kill all the lawyers" came about. This is crazy, they didn't steal HIS image but have set up a scene that is kind of along the same lines. Geeze, all the portraits I've made over the years, someone did them before me!!! I am in deep do-do. Well I suppose I only have my house & my camera so I may not be a target. But it's an expensive camera. Hmmmmm???

0 upvotes
JMichaelsPhoto
By JMichaelsPhoto (Jul 23, 2011)

Since when are elements within a photograph are protectible? By that logic, anyone photographing in Yellowstone National park probably owes Ansel Adams for infringement.

2 upvotes
Ashley Pomeroy
By Ashley Pomeroy (Jul 23, 2011)

Ansel Adams didn't build Yellowstone National Park; his estate has no claim to the park's design. In contrast, David LaChapelle's photos weren't there before he came up with them.

8 upvotes
Vibrio
By Vibrio (Jul 23, 2011)

lol americans will sue for anything

they are of similar stylee but its not a copy

1 upvote
Tee1up
By Tee1up (Jul 23, 2011)

This reminds me of patent trolls looking to do over anyone that comes within a hundres miles of their "intellectual property".

0 upvotes
Mat Miller
By Mat Miller (Jul 23, 2011)

Are you kidding me? Here is a site with the similarities....

http://www.dailymail.co.uk/tvshowbiz/article-1353935/Rihannas-S-M-music-video-strikingly-similar-David-LaChapelles-work.html

No offense but in the S&M world all those shots have been done before and have inspired Mr. LaChapelle. So a music video inspired by his style is infringement?

Its all money! Thats what everyone wants.....

0 upvotes
DiscreteCosine
By DiscreteCosine (Jul 23, 2011)

All those shots have been done before? Really? What other photographer shot women with big red afro wigs on a pink striped room with two windows at the back showing yellow sun rays? Can you post a link, or at least the name of the author?

I don't even like Chapelle's work, but "Striped Farce" (not "Face", as this article calls it) is quite distinctive and original, and the music video's set designer clearly copied it (in an unfortunate fusion of plagiarism and bad taste).

5 upvotes
Droyd
By Droyd (Jul 25, 2011)

What if I wrote a poem describing the elements of this picture?
Would that be illegal copying too?
What If I had a costume made for a stage play based on a painting?

The set was clearly inspired by the photo but to me the fact that its somewhat different and its an other medium make it a new original piece of art.

1 upvote
Taikonaut
By Taikonaut (Jul 23, 2011)

First we had rights of photographers shooting in London and now Rhianna being sued by a photographer.
Is dpreview moving away from camera equipment news and reviews to tabloid news?

0 upvotes
nicolas guilbert
By nicolas guilbert (Jul 23, 2011)

I think both posts where interesting with subjects that many photographers might encounter. I like this move from dpreview.

5 upvotes
Taikonaut
By Taikonaut (Jul 24, 2011)

Yes but save it for the forum.

0 upvotes
FiEND
By FiEND (Jul 23, 2011)

he should be paid. this is obvious theft. he created the entire scene and turned it into art. that's a far cry from taking a picture of a sunset and puting a copyright on it.

3 upvotes
lbjack
By lbjack (Jul 23, 2011)

I love LaChapelle's stuff, but you can't copyright a style. What happened to imitation as the sincerest form of flattery? Ah, the lawyers got hold of it.

"A photograph may also be original in the creation of its subject... if a photographer arranges or otherwise creates the object that his camera captures, he may have the right to prevent others from producing works that depict that subject."'

First he calls it a subject, then an object, then a subject again? I detect the aroma of bs.

0 upvotes
mediokre
By mediokre (Jul 23, 2011)

Who is "he"? The passage you quoted is from the court's decision opinion. (And the judge is a woman.)

Subject = subject matter. An object in the world becomes subject matter for a photograph when photographed. That's an inelegant sentence, I agree, but inelegance doesn't b.s. make.

2 upvotes
DiscreteCosine
By DiscreteCosine (Jul 23, 2011)

It's really not that complicated...

Subject = Theme (as in "subjective", the thing that exists in the mind, the effect a work is meant to have on the viewer).

Object = What's in front of the camera (as in "objective", the things that are physically there, used to convey the subject through the chosen medium).

It's not even an inelegant sentence, it's just a sentence written by someone who knows what "subject" and "object" mean.

4 upvotes
lbjack
By lbjack (Jul 25, 2011)

He, she, so what? And I don't need object and subject explained by a couple of pedants showing off.

The point is that SHE is using different terms interchangeably, as if they were synonymous. So, give it a rest, you twits.

0 upvotes
Higuel
By Higuel (Jul 25, 2011)

Troll!!!
They tryied to help you understand! But that is too hard for you to grasp! :/

3 upvotes
SamTruax
By SamTruax (Jul 23, 2011)

This is great... I just watched a movie that had a sunset photo just like mine on the wall... I am suing their butts off!

Give me a break

3 upvotes
DiscreteCosine
By DiscreteCosine (Jul 23, 2011)

Did you create the Sun and put it over the horizon? If so, then yes, you probably have the right to sue them (at least if your photo was the first to show that composition).

4 upvotes
Higuel
By Higuel (Jul 25, 2011)

Why do ppl prefer to go the lowest, basic way? x_X

0 upvotes
xlynx9
By xlynx9 (Jul 23, 2011)

good to see a better balance of technical and non-technical news coming through lately.

4 upvotes
Sosua
By Sosua (Jul 23, 2011)

Rhianna is so hot!

1 upvote
BOB
By BOB (Jul 25, 2011)

Rhianna is so NOT!!

1 upvote
Total comments: 114
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