What’s Protectable?: Claim of Copyright Infringement of LaChapelle’s Photos in Rihanna’s ‘S&M’

Shira Scheindlin, a U.S. District Court Judge in the Southern District of New York, recently denied Robin “Rihanna” Fenty’s (“Rihanna”) Motion to Dismiss the copyright infringement element of a claim instituted by famed photographer David LaChapelle regarding Rihanna’s highly sensationalized ‘S&M’ video. LaChapelle asserts that the protectable elements of eight of his photographs were used in the creation of the video. The court ruled that LaChapelle successfully proved that a Motion to Dismiss was improper because the video was “substantially similar to particular original expressions of the subjects in the photos.”

LaChapelle argued that although certain themes were not protectable (e.g. S&M, bondage), the way he “selects and orchestrates the themes, props, settings, wardrobe, and colors” while controlling the “angles posing, and lighting” are uniquely his way of expressing those themes which remain copyrightable. The court agreed, stating that if the work is so substantially similar that the ‘Ordinary Observer’ would recognize the copy as having been appropriated from the copyrighted work, copying each detail is not necessary to meet a threshold of infringement. The court did dismiss the federal trade dress claim and other state common law claims brought by LaChapelle.

This case raises the issue of what elements of a photographic work are protectable under the Copyright Act and what visual elements are free to copy as the law does not protect ideas but only their tangible expression. How does one determine what is merely a theme in the work verses the expression of that theme? In the motion, the court references unprotectable elements as those that “flow naturally and necessarily from the choice [subject].” This line between permissible “inspiration” and infringing “duplication” is one that is difficult to articulate when comparing two works of visual art. The Southern District of New York has had its fair share of these cases, and courts have attempted to distinguish between photographing a similar theme on the one hand, while on the other “borrowing” details specifically chosen by the photographer to illustrate the theme. Relying on these past decisions, Judge Scheindlin saw too much similarity in color and in the staging of scenes labeled “Striped Face” and “Pink Room” in particular. She also rejected the fair use defense as there was no evidence of commentary on LaChapelle’s work.

While these visual art case decisions are often controversial, particularly for those artists in the appropriation art movement, the distinctions established by the courts based on these previous rulings will shape how LaChapelle and other visual artists can benefit from copyright protection while leaving room for artistic expression to flourish. Where more intricate details from the original — not necessary to the scene — are “borrowed”, the more likely a judge will allow a case to move forward to a jury. At that point, most of these cases settle and we have no further judicial guidance.

(For more see LaChapelle v Rihanna 11 Civ 0945, SDNY July 20, 2011)