Artist David LaChappelle has filed suit against musician Rihanna, her record label, the producer, and the director of Rihanna’s music video for her newest single, “S&M.”
The lawsuit, filed February 14, 2011, is merely the latest layer of controversy for the video that has been age-restricted on YouTube and banned in 11 countries in just two weeks since its release. The heavily sexualized video includes sadomasochistic imagery that some viewers have found indecent. LaChappelle’s objection, however, is not based upon decency. Rather, he alleges that the video “copies original photographs conceived and created by [LaChappelle].”
LaChappelle, a renowned artist, contends that Rihanna never sought permission to use his photographs despite Rihanna and her people having asked the director of the video (and another director who turned down the job) to “make a ‘LaChapelle-esque music video.’” LaChappelle further alleges that his actual photographs were used in the storyboards for the video.
LaChappelle claims that that the “S&M” video incorporates images so similar to his photographs that it violates Federal copyright and trade dress law. But the video did not use LaChappelle’s exact photographs, so does it constitute copyright or trade dress infringement?
The owner of a copyright has the exclusive right to do and to authorize (among others) any of the following: (1) reproduce the copyrighted work; (2) prepare derivative works based upon the copyrighted work; (3) to distribute copies of the copyrighted work to the public; and (4) to display the copyrighted work publicly.
The copyright infringement claim is likely to turn on whether Rihanna’s video is similar enough to constitute a “derivative work.” Under Federal law, a “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. If the video is deemed to be a “derivative work” then LaChapelle has the rights to it and Rihanna is likely to be found to have committed copyright infringement.
The trade dress claim contends that LaChappelle’s work is so well known that it has acquired secondary meaning, i.e., that people attribute the work to LaChappelle and that the video’s images cause confusion as to the source of the work (LaChappelle rather than Rihanna).
LaChappelle hopes to use legal restraints to stop Rihanna and her video. The merits of the case may get an early test if LaChappelle seeks a preliminary injunction, the legal equivalent of a ball gag.
Nicholas D. Myers, Esq.
