Rihanna Sued By Yet Another Photographer Who Doesn't Understand That An Homage Is Not A Copy

from the ain't-the-same dept

Earlier this year, we wrote about how photographer David LaChappelle was suing Rihanna for the video of her song S&M, which includes a variety of scenes that might sorta be attempts to depict LaChappelle photographs as a part of a video:




I couldn’t see how that was copyright infringement at all, but apparently another photographer heard about LaChappelle’s lawsuit and decided to jump into the fray as well. Photographer Philipp Paulus is claiming that a different part of that same video infringes on the copyright of one of his photographs:



Once again, I’m at a loss to see how this might be infringing. At best, it’s an homage, for which the artist should be happy. At worst, it’s hard to argue that this isn’t a clear case of fair use. It’s definitely transformative in a variety of ways (photo to video, very different scenes and setups, music video, etc.) and it’s ridiculous to argue that this, in any way, harms the commercial value of the original work. These lawsuits just seem like some annoying photographers trying to cash in.

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Comments on “Rihanna Sued By Yet Another Photographer Who Doesn't Understand That An Homage Is Not A Copy”

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64 Comments
Anonymoussays:

Wait, who says that an homage is not a copy? I mean, it may not be an identical copy, but it also might copy certain elements (even if not copying the prior work in its entirety).

For purposes of copyright infringement (which appears to be the topic of this article), an homage (or derivative work) may very well be considered a copy.

VMaxsays:

Re: Re:

Please take a deep breath. Some people don’t understand that humans (well, most primates) copy each other all the time. It’s how we learn to walk, eat with utensils, and generally get along. We just find ways to do it more imaginatively than who we learned from. So just relax, and know that some of our other primates don’t get it. Some of them learn after all if given time. No reason to beat them on the nose with a rolled up newspaper.

Anonymoussays:

Re: Re: Re:

Aw, lookit you, all civilized and stuff. ­čÖé

I’m just all outta patience with this nonsense. I want no part of their whinging, tiresome, inane, damaging, pointless, anti-cultural worldview. I refute it. I won’t honor it. It isn’t worthy of anything but disdain.

A whack with a rolled up newspaper is too good for ’em. Unless there’s a stick of rebar in it…heh.

They’re poison. Makes one gag up nasty stuff.

Anonymoussays:

Re:

Hold on a moment, what person suggests that an homage would not be a duplicate? My meaning is, the homage might not be a perfect duplicate, but perhaps might imitate specific parts (while not imitating the previous creating completely).

Regarding copyright infringement (which I believe is the main idea of the article), an homage might possibly be legally considered a duplicate.

Chunky Vomitsays:

“Wait, who says that an homage is not a copy? I mean, it may not be an identical copy, but it also might copy certain elements…”

Like for example, a person or multiple persons appear in each a photograph. That element alone is enough to be a breach of copyright law right?

Seriously, none of the examples here can be called copies. Inspired by, perhaps. The first S&M photograph plays out in real life more than people are probably willing to admit, the second one, well, come-on, a girl singing in front of a wall with an X in the background. I’m sure if we reviewed the millions of hours of music video footage, we would find that this has happened more than once.

Anonymoussays:

Scope of copyright protection

?

17 U.S.C. ? 102 Subject matter of copyright: In general

?.?.?.?.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Ideas are not copyrightable.

Concepts are not copyrightable.

Honestly, if this is all there is, the plaintiff’s suit should be tossed, the defendant awarded costs, and the plaintiff’s lawyers ordered to show cause.

Anonymoussays:

Re: Scope of copyright protection

But see, Feist Publications, Inc.
v. Rural Telephone Service Company, Inc., 499 U.S. 340 (1991) (Original selection, coordination, and arrangement of unprotectable elements may constitute expression protected by copyright).

See also, Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2dCir. 1930) (Noting the difficulty of identifying the point where unprotectable abstract idea crosses over into protectable expression).

Here, you’ve got numerous elements from the allegedly copied photos that show up in the allegedly infringing video sections. Maybe none of those elements are individually protectable, but once you see several of those elements (which I personally have not seen elsewhere in at least the second case), it gets to be a much closer case.

Anonymoussays:

Re: Re: Scope of copyright protection

Here, you’ve got numerous elements from the allegedly copied photos that show up in the allegedly infringing video

You paint a nice, abstract word picture.

Identify the elements with specificity, please. And specifically identify the allegedly protectible selection, coordination, or arrangment of those elements.

‘Cause I’m just not seeing anything that doesn’t get filtered out in AFC. What circuit are we in, anyhow?

Anonymoussays:

Re: Re: Re: Scope of copyright protection

No idea what circuit the second suit was filed in, but I identified several common elements in another post:

“woman, predominantly in red, on a blue/turquoise background, singing, with eyes closed, head faced diagonally (to viewer’s left), both hands displayed palms out in front of her, with a black X (or two) on the blue wall”

I think there’s a decent case that the selection/coording/arrangement of those element in the first photo is sufficiently original for copyright protection. As you know (as it seems that you know something about copyright law), the quotient of originality needed for protection is low.

There’s also a decent chance a jury would believe those elements were copied, and were “qualitatively substantial.”

Anonymoussays:

Re: Re: Re: Re: Scope of copyright protection

woman, predominantly in red, on a blue/turquoise background, singing, with eyes closed, head faced diagonally (to viewer’s left), both hands displayed palms out in front of her, with a black X (or two) on the blue wall

+ vignetting (corners are darker than center of images).

Unprotectible concept.

You really think Congress intended to grant life + 70 years worth of monopoly on that kind of concept?

For instance, you’re claiming that one black “X” on the wall is equivalent to two black “X”. Does the photographer also get a monopoly on 3 black “X”?

Of course, without knowing what circuit we’re in, it’s hard to say whether the judges have any disposition to follow the statute that Congress wrote.

Anonymoussays:

Re: Re: Re: Re: Re: Scope of copyright protection

Well, as has been noted fir over eighty years, it’s very hard to draw the line, but I’ll note that posing of models in photos has been recognized as potential protectable expression for a long time.

Certainly nowhere near sanctionable to file a suit here, as you seemed to suggest. I think it could actually be a winner.

As for the Xs, the total number might actually be the same in both cases, although that’s not shown by the excerpts in the article. You can see more with a google image search.

Greevarsays:

Re: Re: Re: Re: Scope of copyright protection

That’s so beyond stupid that I don’t know where to start!

Ideas and concepts are not copyrightable. If we were to take your argument seriously, then a red balloon on a blue sky would be copyrighted and nobody else could depict a red balloon on a blue sky in any form. That’s why this lawsuit is stupid and unsupportable. The only way this would have any legal grounding is if the video contained the actual photos that depict the works in question. It’s not a copy, it’s an imitation. Imitating is not infringement. Case closed.

Anonymoussays:

Re: Re: Re: Re: Re: Scope of copyright protection

“Ideas and concepts are not copyrightable.”

This is the only thing in your post that is true and/or logical, but you apparently don’t have the slightest clue what that maxim means in actual practice.

“The only way this would have any legal grounding is if the video contained the actual photos that depict the works in question.”

You obviously don’t know what you’re talking about. Look, I provided a couple case citations for my points above. Why don’t you read them. It might give you a better idea of what it means, and doesn’t mean, to say “Ideas and concepts are not copyrightable.”

Greevarsays:

Re: Re: Re: Re: Re: Re: Scope of copyright protection

“This is the only thing in your post that is true and/or logical, but you apparently don’t have the slightest clue what that maxim means in actual practice.”

No, you don’t know what you’re talking about. Ideas and concepts are not copyrightable. I know exactly what it means. It means that two depictions of similar ideas are not copies and are not infringing. I don’t care how many of the ideas in the works in question are similar, that doesn’t constitute infringement. They are not the same! They are obviously not copies!

Your citations prove nothing, except for the fact that people can be convinced to believe things that are contrary to reality. The photographer has no case. Those are ideas being used in that video, not his work. I see nothing but concepts and ideas. It doesn’t matter how many common elements exists between the two works. Nothing that the photographer created exists in the video. The sets are not his, the costumes are not his, the sets, props, and actors are not his. Nothing in those works are his. If I wanted to take a photo of a woman holding a leash on a man in leather trappings and sell it, I’d have every right to do so.

To say this person has a case is to say that any depiction of a woman sitting in front of an outdoor scene with an ambiguous expression is an infringement on the Mona Lisa by Da Vinci you dolt! The photographer’s photos are an expression. What they express is an idea. The photographer’s expression is not in any way infringed upon by Rhianna using the same ideas in a completely different expression. Same ideas, different expression. That’s why the photographer is wrong.

Anonymoussays:

Re: Re: Re: Re: Re: Re: Re: Scope of copyright protection

You really think that citations to legal precedent are not relevant in determining whether someone has a decent legal case? That sort of undermines the rest of what you have to say.

I actually litigate these kinds of cases, and have been doing so for years. I do know what I’m talking about. What is your experience again?

Prisoner 201says:

Re: Re: Re: Re: Re: Re: Re: Re: Scope of copyright protection

Well that explains it. Contrary to your intentions, you actually reduce your believability by revealing that you work as a litigator.

Lawyerism has nothing to do with the law, just about winning the case and getting the cash.

If your kind can twist the law to say that any photo and/or video containing a “woman behind some form of transparent material” is a copyright violation against your client, you will.

Regardless of the consequences these “legal precendents” will have on society. Its what you do. Cash is king.

Greevarsays:

Re: Re: Re: Re: Re: Re: Re: Re: Scope of copyright protection

It undermines nothing I said. It does put you point in doubt though, seeing as that’s all you have to support your argument. Every case is different and should be judged on its own merits. Precedent is just a tool to push a judgement one way or another when the evidence doesn’t merit such.

“What is your experience again?”

Oh, you’re cute. You actually think that being in a court room makes you the more knowledgeable person? I don’t know, maybe I READ THE COPYRIGHT ACT? Experience at twisting opinion to your favor is not experience in knowing the difference between ideas and expression. But thanks for pointing out where your experience comes from. Now I know why you’re biased.

Let me bottom line this for you: The video does not contain any of the photos in questions, it only contains ideas expressed in them. The concepts inherent in both works are not exclusive to anyone and are considered mutual knowledge among a large number of people. Therefore, it is not infringement. It can’t be infringement. Like I said before, to claim that this video is an infringement on his photos, is to say that everyone that creates a red balloon on a blue sky is infringing on the first depiction of a red balloon on a blue sky. Such a restriction would destroy art as a whole.

This whole case is an attempt to claim ownership of ideas that cannot be owned. Get it through your thick skull, YOU ARE WRONG. The blue wall, black X’s, the diagonally turned head, etc. are all ideas, none of that is covered by copyright. No matter how many of those elements are in common between the two works it doesn’t add up to infringement and it never will. Show me a part of the video that contains the actual, exact photos in question and you might have some ground to stand on.

Re: Re: Scope of copyright protection

So if I take a picture of a man sitting down, playing a guitar in front of a building, I should be able to have the courts uphold my copyright claims against every other depiction of a man sitting down playing a guitar?

It would be funny if it weren’t so sad. Honestly, I think these guys should win just to see the thousands of other artists start suing the crap out of each other as they start claiming they own the copyrights to concepts, arrangements and styles.

Then, the first guy can sue all those who sued by claiming that he owns the copyright of the expression of an artist suing another artist over the copyright of an artistic expression.

Anonymoussays:

Re: Re: Re: Scope of copyright protection

“So if I take a picture of a man sitting down, playing a guitar in front of a building, I should be able to have the courts uphold my copyright claims against every other depiction of a man sitting down playing a guitar?”

Nope.

I’m pretty sure nothing I said implied that.

G Thompsonsays:

Re: Re: Scope of copyright protection

Your bringing up Feist (a database dispute that is about static lists alone) in relation to this matter?

WOW.. I mean WOW!

If this video infringes at all it would only be in specific frames of the video, since video is normally at a minimum for broadcasting 15 frames per second, at a maximum the absoluteness of the copy of the original static photograph would be at a maximum less than 0.1% of the whole video/work which has multiple (think thousands) of other static images that are uniquely its which would make up over 90% (99.9% more likely) of the other elements that are not in dispute.

Remember we are talking about a specific STATIC photographic image in a specific point of time being allegedly infringed here which does NOT in any way relate to how the list (or video in this instance) was constructed solely based on the data (photo here) already published and not the concept, idea, or any other esoteric vagueness or imagery of the original photograph you can come up with.

As for Nichols, I don’t think there is any difficulty for the court to understand solely transformative processes here based on numerous prior art instances of S&M imagery used elsewhere in numerous photographs, not just by this one photographer who seems to have an ego problem. Otherwise every time there is a video of a tree, any photographer anywhere whom has captured an image of a tree could bring suit. Hopefully the court will just use de minimus and dismiss.

TheStupidOnesays:

I just fail to understand ...

How on this god forsaken planet can that be considered copyright infringement? Let me explore …

Was a direct copy made, or any portion of the original photographs used in any way in the new material? No

Were critical, creative elements copied from the originals into the video? No.
The first scene is a pretty standard dominatrix humiliating her sub situation imaged in two very different ways. The only truly creative decision that appears to have been duplicated is the style of the sub’s hat. Everything else that is very similar is not a creative decision by the photographer any more than shooting a famous landmark is a creative decision.
The second scene is again an S&M stereotype with the only creative element that might have been copied being the black X (though that may also by stereotypical of the scene), everything else is very different.

This isn’t fair use, this isn’t derivative, this isn’t transformative. There isn’t any copying going on, so there can’t be copyright infringement.

Anonymoussays:

Re: I just fail to understand ...

I don’t claim to be an S&M connoiseur, but how is the second photo an S&M stereotype?

“woman predominantly in red on a blue/turqoise background singing with eyes closed, head faced diagonally, both hands displayed palms out in front of her with a black X (or two) on the blue wall” is an S&M stereotype?

Anonymoussays:

Re: Re: Re: I just fail to understand ...

Being sadistic and masochistic is not the same as being an S&M stereotype.

Also, “a person imprisoned behind a sheet of plastic” is not the same as “woman predominantly in red on a blue/turqoise background singing with eyes closed, head faced diagonally, both hands displayed palms out in front of her with a black X (or two) on the blue wall.”

Apparently, that was too hard to figure out, though.

Greevarsays:

Re: Re: Re: Re: I just fail to understand ...

S&M stands for Sadism and Masochism you idiot. It’s exactly the same.

You asked how it’s a stereotype. I answered. The rest of your bat-shit argument is irrelevant.

Also, “a person imprisoned behind a sheet of plastic” is not the same as “woman predominantly in red on a blue/turqoise background singing with eyes closed, head faced diagonally, both hands displayed palms out in front of her with a black X (or two) on the blue wall.”

If you think this level of specificity makes it infringement, you’re dreaming. It doesn’t matter how similar it is. Similarities are not copies. No infringement has taken place. Case closed.

Petesays:

Echt Copying

Copied from Wikipedia:

Copying or the product of copying (including the plural “copies”); the duplication of information or an artifact.

This means the same as what it says.

How to spot a duplicate? Easy look for the difference, if it exists, it’s not one (a duplicate, that is).

However,I suspect the real issue here is not the limits of copying, but the limits of ownership and the assertion owner’s rights.

With maybe some attention seeking into the bargain.

Anonymoussays:

Re: Echt Copying

Wikipedia doesn’t make copyright law. As the article appears to be a discussion of copyright law, non-legal definitions of what a “copy” is aren’t really that relevant.

Certainly, “if there’s a difference, it’s not a copy” is not a valid proposition in terms of copyright law.

Greevarsays:

Re: Re: Echt Copying

No, but the United States Congress does and it says that copyright applies only to the expression of the ideas. Furthermore, it makes no indication that the creator is granted ownership of the expression either. It only says that the author owns the copyright. The idea is not his, the expression of the idea is not his. Only the right to choose to whom a copy may be given to is his property.

Authors, publishers, and their lawyers may try to contend that creative works are the property of their creators, but the law does not support that claim. They own nothing but the right to restrict copying. Not one pixel from the photographer’s work is included in the video. There is no infringement.

Re: Re: Re: Re: Echt Copying

They only appear idiosyncratic to those heavily indoctrinated by the “Copyright prevents poor artists from starving” and “Copyright benefits the public” fairy tales (among others).

The recognition of natural rights goes back thousands of years and provides the foundation to the US Constitution. Natural rights also explain why the liberty people naturally possess must inexorably supersede the 18th century privilege granted for the benefit of the press (to annul in the majority, the right to copy, leaving the right, by exclusion, in the hands of a few – ‘copyright holders’).

I’ve written on this recently in The 18th Century Overture – A Crescendo of Copyright – Natural Finale and Reprise.

Why not give it a read? At worst, it’ll provide you with even more hilarity. You never know you might even learn* something.

* Did you know that ‘learn’ comes from old English ‘leornian’ to follow in another’s footsteps, to COPY another’s path? But, then, if learning is copying, to those who would prohibit copying, learning must be prohibited too. Such anti-learnists are ignorantly leading us into Fahrenheit 451.

Re: Re: Re: Re: Re: Re: Echt Copying

I suspect he’s been visiting http://www.jeremynicholl.com/blog/2011/06/27/%E2%80%9Cjay-maisel-is-a-dick%E2%80%9D-freetard-mob-savages-octogenarian-photographer-over-copyright where my comments rather put the cat among the pigeons and no doubt got him and others all rather flustered.

Here’s another of my recent ‘cat among the pigeons’ visits: http://www.copyhype.com/2011/06/demonizing-copyright

IP lawyers get really upset when people point out how unethical these anachronistic privileges are, because deep down, in what remains of their humanity, they subconsciously recognise that they are helping their clients wield instruments of injustice.

dwgsays:

Re: Re: Echt Copying

You’re right: the standard is “substantial similarity,” and it’s a MUCH higher bar than you seem to think. It’s NOT a fact-finder looking at two things side-by-side and going “mmmm….yea, I see it.” Instead, it’s parsing, within the original, what might and might not be protected, and then seeing how many of the protectible items are actually COPIED in the allegedly infringing work.

See? Oh, and I used to be a copyright litigator. I gave it up after being asked to argue on behalf of a producer of laminate flooring who claimed infringement in its copy of a naturally occurring wood grain pattern. So I’d say I have the background knowledge and the credibility to go with it. And this is not actionable.

Anonymoussays:

Re: think this through

I would like to see that. An actual fight, as in scratching, kicking, punching. Take the legal niceties out of copyright and make it an all out knock down drag out, winner takes all – all your concepts, all your copyrights, all your money, all your lawyers.

Turn copyright into Rollerball.

Anonymoussays:

Heh. Reminds me of the Jeff Koons case (http://en.wikipedia.org/wiki/Rogers_v._Koons).

Basically, will the average person see a high enough degree of similarity to say this was copied?

I see similarities. I’m not sure what the legal protections for “homage” are. Are these of a degree to be called copyright infringement? Beats me. I don’t think so, but I ain’t the court. Who knows.

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