Published by LawTechie - July 28, 2011 - LawTechie

There has been a bit of outrage over the SDNY’s latest decision in the recent copyright infringement lawsuit against Rihanna. LaChapelle v. Rihanna, 11-cv-0945 (SDNY, July 20, 2011). The Court allowed a copyright infringement action to go forward with respect to the following original/alleged copies:

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Mike Masnick at Techdirt.com writes, per this decision, that the “expression dichotomy is dead.” Specifically:

As I noted when the lawsuit was first filed, I couldn’t see how this passed the idea/expression dichotomy test. Copyright is only supposed to protect the specific expression, not the “idea.” And all of these looked like similar ideas, but I couldn’t see any direct copy of an expression. Apparently, the judge in the case disagrees.

We must respectfully disagree with our colleague.

Yes, the images look different. But we think the real question here is: Are they copies? Certainly, they devalue the creativity of the original artists, but are they good honest competition? We have always felt that a so-called “idea” can be expressed in a few words. For example, if we conveyed an idea by asking a photographer or artist to create an image showing the domination of an authority figure (such as a policeman above) by a fashionable woman, perhaps casting the authority figure as a pet, we doubt very much that there would have been as much similarity. Likewise, the “look and feel” of the two rooms juxtaposed in the last pictures — from our perspective — look like they could be part of the same music video.

One could quibble about whether the idea “please create a crazy-looking room” would manifest into such similar images as juxtaposed above. In the end, we think the Court’s analysis is on point:

LaChapelle’s “Noisy Frame” and the Video’s “Press Scene” both convey the idea of a female celebrity helpless before the predatory gaze of the media… both works also feature the woman with her back against a bright teal-blue wall, upon which the elbow of her raised arm casts a sharp dark shadow. These specific choices concerning staging and color are not necessary to express the concept of a helpless female celebrity being preyed upon by the media.

Certainly the minute similarities via staging warrant that this case moves past the threshold idea/expression dichotomy stage and on to whether or not there was access and how similar the works might be (as decided by a fact finder).

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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