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The Idea/Expression Dichotomy Is Dead (um, I hate to say I told you so...)

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:

Idea/Expression Dichotomy Is Dead; Judge Allows Photographer's Lawsuit Against Rihanna To Move Forward

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.

126 Comments | Leave a Comment..

* Here's comment #8 from Techdirt:

Cloksin (profile), Jul 27th, 2011 @ 7:43am

If Rhianna is infringing on LaChapelle, doesn't that mean that LaChapelle is infringing on any number of other photographers whose work has been copyrighted and produced much earlier than LaChapelle's? Any number of Fem-domme photos posted on BDSM sites around the web such as kink.com, insex.com, and insexm.com to name just a few.

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.

Announcing Whitney Stories: a new online magazine

The Whitney Museum has just unleashed its new online initiative, Whitney Stories.

From the press release:

The Whitney is introducing Whitney Stories, a new quarterly online magazine designed to invite readers to engage with the multiple histories and narratives that make the Museum a compelling place to visit—in the galleries or online.

Our first issue, “Whitney of the Future,” provides a look at events surrounding the May 2011 groundbreaking on our new building in downtown Manhattan, designed by architect Renzo Piano and scheduled to open to the public in 2015. Future issues of Whitney Stories will continue to offer our visitors a behind-the-scenes look at Museum projects large and small.

Produced and published by Whitney staff, Whitney Stories is a publication designed to grow and change as the Museum does. Readers can subscribe to our RSS feed or social media channels to follow along as the Whitney’s story unfolds.

 

Whitney Stories At-a-Glance: 

+ Whitney Stories was designed by the design partnership Linked By Air, who also designed our website, whitney.org.

+ A social feature, What Do You Think allows readers to share their thoughts about a range of topics related to the museum. 

 

Highlights from the first issue include:

+ Breaking Ground: Watch Breaking Ground, the performance Elizabeth Streb and STREB Extreme Action Company choreographed for the groundbreaking ceremony  

+ Cory Arcangel Re-Blogs the Internet: Learn more about artist Cory Arcangel’s online projects, including a special media partnership between the Whitney and Buzzfeed for his exhibition, Pro Tools, which is currently on view at the museum through September 11, 2011.

+ Into the Future with CHERYL: Come party with CHERYL, the performance art collective that hosted a special party to celebrate groundbreaking on the new building.

smART Rights' Gina Glascock-Broze, Interviewed

One of the more interesting bloggers in the realm of artist copyrights is Gina Glascock-Broze, who blogs at smART Rights where she offers general insights, humor and savvy on the subject. It looks like Gina was recently interviewed by Marquand Books:

 

A Conversation with Gina Glascock-Broze

Posted on July 13, 2011

Gina Glascock-Broze has worked for more than five years in rights and reproductions with local, national, and international artists, studios, galleries, rights agencies, and museums as a project manager of artist copyright permissions and photographic material for various clients, including non-profit groups, museums, and publishing houses. She is interested in the many complexities of copyright law, gardening, and making pickles. She blogs here: http://smartrights.wordpress.com/

© Robert Wade Photography

 

Can you sum up for me what you do and how you got started?

I would like to be able to say that image sourcing and copyright permissions are pretty straightforward, but they aren’t, really. I help museums or publications secure photography and image/copyright permissions for the works they want to reproduce in a catalog or as part of an exhibition. This entails working with the catalog’s checklist, contacting the museums or owners of the works of art to ask for photography, and contacting artists or their estates for copyright permissions on works that are not in the public domain. It sounds easy, but when you think of it as part of a major catalog with 200–300 images, and add in all the decision changes to the design and the artworks that will appear, and then add in all the research it takes to find out who owns the copyright (not to mention the understanding of what copyright is), it can be quite daunting.

I started by working for the Seattle Art Museum. As exhibitions and publications coordinator, I had to research images and coordinate permissions for catalogs. I always liked the research, tracking artists down, and figuring out what we needed and how we were going to get permissions to do it. I still get a thrill when I get a letter from a famous studio or artist’s estate. It’s like, “Oh wow—Gilbert and George are writing to me!” It’s fun to get mail from famous artists. Later at SAM, I became the rights and reproductions administrator responsible for all non-commercial rights clearance for the museum and the management of image rights for external requests.

How did you begin working with Marquand Books?

I started working with Marquand Books when I worked at the Seattle Art Museum. Marquand Books was often the publisher of the catalogs I worked on as exhibitions and publications coordinator. Later, my former boss at SAM recommended me when MB needed freelance permissions work done.

Are there many freelancers doing the sort of work you do?

I don’t know exactly—there are some. I know some of the larger museums I do freelance work for have other freelancers working on other projects at the same time. It is a job for which you need a certain amount of experience to do, and at many larger museums there is an in-house rights and reproductions person, so there are a number of people with the right experience. How many freelance, I couldn’t say. In commercial publishing there are many freelancers, I believe.

How have image permissions changed in the last decade or so?

I can only speak to museums or educational/non-profit image permissions changing, since I really haven’t worked on the commercial side of permissions at all. The one thing that has changed dramatically in the past ten years is digital rights. In the early days of the web, museums and artists were very afraid to give rights to anything digital, thinking that they would lose all control as soon as an image was out there in cyberspace. But understanding of this has evolved, and now it is completely normal to request e-book rights or web rights for publishing copyright-protected images.

Also, just last year, the American Association of Museum Directors (AAMD) finally came out with a long-awaited statement on fair use—basically a statement of policy for member organizations—with regard to the use of thumbnail images of artworks in museum collection. It might seem silly that a museum couldn’t put small ID images on their website of works of art in their collection if they were under copyright, but as long as websites have existed, museums have been afraid of being sued if they put even the smallest of images of the work in their collection on their website. The AAMD policy means that finally museums can stand together with a common policy on using these thumbnail images. It seems small, but it is actually a big change.

How about e-books?

E-book permissions are pretty much the same as regular permissions these days. The only difference is that you have to be able to lock down access to the e-book—it is only available on one website, not downloadable, etc., and the term of the license is different: instead of printed copies, you have access for a period of years—stuff like that. But e-books are definitely on the rise. Many large museums have a policy that blanket-requests e-book rights for all catalog publications. This is really new to me this past year.

What’s the toughest part?

The toughest part is to be on the far end of all the changes that take place when work on a publication is underway. I’m not in the room where the decisions are being made, yet every change to an image has an effect on what I do. So there is a lot of back and forth, usually hundreds and hundreds of emails; you have to be very organized.

Where do you see image permissions headed? Any future challenges or changes?

I see a lot more of the permissions/image sourcing being shifted to freelancers like me. Museums are wildly understaffed, and if they can add to their exhibition/publication budgets the fees for copyrights, image fees, and a freelancer to do all the work for them, they can fundraise for the whole project and not spend their precious few internal resources trying to do a Herculean task.

However, I also sort of hope that one day I see an end to my profession. I would love to see a world in which museums and not-for-profit entities can use copyrighted images for educational purposes—like catalogs—under fair-use, without the threat of being sued; a world where all museums open up their digital libraries and make images easily available to other museums and not-for-profits for free without a lot of burdensome contracts and licenses. Unfortunately, given the current state of copyright law, I don’t think it is going to happen any day soon—but one can hope.

Found Art (East Village): Unmonumental 303

Found Art (Nolita): Unmonumental 302