Alas, this has come to pass; while it negatively affects everyone involved in the visual arts, it's particularly bad news for photographers:
Musicians commonly pay to sample music or use someone's beats and there should be no difference when 'sampling' artist's visuals. ~ David LaChapelle (ARTINFO)
Wow. Really? But even so, David, Rihanna never actually "sampled" your visuals. She went with the same idea (pink, etc) to produce her own visuals (her own expression) based on the same ideas (ideas are not protected by copyright, supposedly; or not until just now, anyway).
Now that "frantic moods", not to mention striped wallpaper of a particular hue, pink rubber S&M hoodies, and dog leash scenarios are exclusive to David LaChapelle (oh wait, dog leashes....? hasn't that been done before??) I guess they're forever off-limits to everyone, including the naughty Femme S&M photographers of the Future -- nipped in the bud, I'm afraid. No more depictions of frantic moods for YOU; David LaChapelle PWNS that.
But aside from the Kafka-esque absurdity of the idea that a single artist might own a particular use of the color pink, or the ability to create a certain mood, does LaChapelle really want to drive the world of visual art into the regulatory hell of music sampling? (In which case, we might as well all throw in the towel, and move to China). Apparently he does, as long as it lines his own pockets. But it doesn't take much imagination to see the shoe being on the other foot.*
More on why this sets a very bad precedent, one that should have all visual artists, particularly photographers, up in arms, or at the very least, on edge -- via Techdirt:
from the general-frantic-mood dept
by Mike Masnick
Wed, Jul 27th 2011 7:23am
Well, this is unfortunate. Back in February, we wrote about what seems like a positively ridiculous lawsuit from photographer David LaChapelle, against the singer Rihanna for her video S&M. LaChapelle claims that scenes in the video infringe on certain photographs he's taken. You can see some of the comparisons here:
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. The judge rejected Rihanna's motion for dismissal, saying that it seems likely that the video infringes on protectable expression. If that's true, then there is no idea/expression dichotomy in copyright law anymore. Basically, if a judge wants to pretend an idea is the specific expression, he or she can.
For instance, the court pointed out that the video's "Pink Room Scene" and LaChapelle's "Striped Face" photograph both feature women dominating men in a domestic scene. That subject is not protectable, the court noted, because "the subjects flow naturally from the chosen idea" of sadomasochism.
But the particular way that Rihanna's video portrayed the scenes--including the set, wardrobe, "generally frantic mood" and lighting--was "substantially similar" to LaChapelle images, even if all the details were not identical, the court concluded.
"Both works share the frantic and surreal mood of women dominating men in a hypersaturated, claustrophobic domestic space. Thus, I find that an ordinary observer may well overlook any differences and regard the aesthetic appeal of “Striped Face” and the “Pink Room Scene” as the same," Judge Shira A. Scheindlin wrote in her decision.
General frantic mood? General frantic mood?!? How is that a fixed expression? And it's not that not all the details were identical. It's that the details are extremely different.
The judge is apparently also not a fan of fair use:
The judge dismissed Rihanna's fair use defense out of hand, saying it was so misguided and "unavailing" that the pop singer failed to raise a fair use defense at all.
I'm not sure that sentence makes any sense. At the beginning it says the judge dismissed her defense, but at the end of the sentence it says she failed to raise the defense. But, still, it seems like you could make a really strong fair use case here, if you actually believe that there is protectable expression being copied (which I still don't). The purpose seems totally transformative. The amount used seems tiny. And the impact on the market for the photographs seems like it's only likely to be positive, not negative. How wouldn't there be fair use here?
Of course, this is good news for the other photographer making very similar claims against Rihanna, as well as plenty of other photographers who think someone somewhere has done something marginally similar to their work.
* Here's comment #8 from Techdirt:
If LaChapelle ends up winning this lawsuit, won't that open the door for all those other photographers to turn around and sue LaChapelle for the same thing? I think in the long run any money he may recieve from this lawsuit would be miniscule compared to the money he would have to pay out to all those other photographers.