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).

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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.