A federal court has refused to dismiss David LaChapelle's copyright claim against pop singer Rihanna over a music video with scenes allegedly copied from several of LaChapelle's images. The ruling, by the US District Court in New York City, means the photographer's claim can now go to trial.
LaChapelle filed suit in February, alleging that some scenes from the video for Rihanna's hit single called "S&M" are rip-offs of sadomasochistic images he has created and published over the years. According to LaChapelle's claim, Rihanna asked various directors to create a "LaChapelle-esque video" for "S&M," and provided a story board for the video actually included prints of some of LaChapelle's photographs.
In its pre-trial ruling, the court ruled that LaChapelle made a plausible claim for infringement because the video appeared to copy protectable elements of his images, according to the judge. (Protectable elements exclude the idea and subject matter, but include factors that contribute to the originality or expression of the subject: sets, wardrobe, lighting, camera angle, mood, etc.)
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.
She reached the same conclusion after comparing other video scenes to particular images by LaChapelle.
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.
But Judge Scheindlin also dismissed other claims made by LaChapelle, including trade dress violation and unfair competition claims. Those claims were based on LaChapelle's contention that audiences would confuse Rihanna's S&M video with his work. But the court said LaChapelle was merely re-stating his copyright claims, without providing enough evidence to sustain his additional claims.
With the copyright claims cleared for trial, the judge scheduled a pre-trial conference for August 10.
Now it is up to Rihanna to decide whether it is worth the risk and expense to defend against the copyright claims in front of a jury--or try to settle with LaChapelle out of court.