Photographer LaChapelle can sue Rihanna over 'copycat' video
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).
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.
|Fangorn Forest by cand1d|
|Yosemite Falls with Moonbow by Jonathan Shapiro|
from Best Landscape of the Week 4
Sony addresses a variety of bugs and stability issues with firmware updates for a range of E-mount lenses and an adapter.
Fujifilm has released firmware updates for its camera models X-T2, X-Pro2, GFX 50s, X-T20, X100F and X-T1 and updates to three of its software products.
A 22 year-old Romanian photographer uses his DJI Phantom 4 drone to capture unique perspectives of the city where he now lives.
What's it like to ride the waves with champion surfer Kelly Slater? This VR video from Teton Gravity Research gives you a taste.
DPReview editors Rishi Sanyal and Carey Rose hosted a Facebook Live discussion to share their impressions about the Sony a9 so far. Watch the video
When Nikon released the full-frame D3 in 2007, it changed the professional photography industry. In this week's Throwback Thursday, Barney remembers a legend. Read more
The new stuff should have better red hues, improved sensitivity and finer grain - but don't worry - will still shift blues to green, greens to purple and yellows to pink.
Ricoh has introduced a new rugged compact camera with a 16MP CMOS sensor, 28-140mm lens, 2.7" LCD and built-in LED macro lights. Read more
This compact drone can shoot HD video using a 2-axis stabilized 12MP camera. Read more
The new Prynt Pocket can print a photo directly from their iPhone simply by inserting the phone into the printer, then snapping a photo. Each print will cost about 50 cents. Read more
Updates for Adobe Camera Raw and Lightroom CC bring support for the Sony A9 and Panasonic ZS70/TZ90, along with bug fixes.
The Triggertrap remote camera control system is no longer sold due to the company folding, but now users will be able to build their own. Read more
The Magic Format Converter comes with internal optics that expand the image circle of full-frame DSLR lenses for use on the Fuji medium format camera. Read more
The usually Apple-exclusive MacPhun software developer has announced that it will introduce PC versions of two of its most popular applications. Both Aurora HDR and Luminar should be available for the Windows operating system by the autumn of this year. Read more
Sony's newest G Master telephoto zoom, announced alongside the a9, is the first of the company's FE lenses to reach 400mm natively. We had one in California and photographed horses, portraits, and landscapes - check out how it did. Read more
Garmin has entered the 360-camera market with the VIRB, which captures 5.7K video at 30p as well as 15MP stills. Read more
German media reports that the founders of the company behind the Panono 360-degree ball camera have filed for bankruptcy at a court in Berlin. Read more
With a claimed 800 new custom parts, Microsoft's updated Surface Pro comes with the latest Kaby Lake processors, better battery life, a new hinge, plus the Surface Pen is updated as well. Read more
DW Photo is attempting to resurrect the Hy6 medium format camera, though the legal tangles of its development may stop it being branded Rolleiflex.
The Kodak EKTRA, the company's 'camera first' smartphone, is now available to purchase in the United States. Read more
Apple and Nokia have settled their years-old patent dispute. Apple will make an undisclosed payment to Nokia and sign a licensing agreement related to digital health products with the Finnish company.
David Gibson, one of Britain's best known street shooters, shares all.
Photographers from the SKYGLOW project travelled 150k miles and took 3 million photos in increasingly rare locations: those without light pollution.
The world's fastest 200mm was produced for 16 years. In that time, only 8000 were made.
Photokina, the biennial photo industry trade show in Cologne, Germany, has announced that it will become an annual event beginning in 2018, and expand its focus to additional areas of imaging technology. Read more
No mic socket? No problem. In this video, Daniel Peters at Photo Gear News shows you how to make a lapel microphone using just a smartphone and a pair of earbuds.
How does the iPhone 7 Plus stack up against the Arri Alexa cinema camera? Watch this short video to find out.
Canon Australia's video series "The Lab" is designed to make photographers experiment and think outside the box. In the latest video a group of photographers create images based on their sense of taste.
The GH5 is expected to get a firmware update this summer to support 400Mbps internal recording. NewsShooter explores what memory cards you'll need to make it work.
Microsoft's new Surface Pro offers Intel's latest processor generation and improved battery life.