Is imitation the most sincere form of flattery?
By Adi Efrat
Reviewed by Cynthia Amis
Imitation certainly can be a sign of flattery, but it can also be copyright infringement. Generally, when imitation is discussed in a copyright infringement context, the imitation or “copying” is done within one medium. High end fashion clothing is imitated by inexpensive national chains, images and works of art are constantly republished online without a license, and television shows are posted all over the internet and accessible to the public free of charge, and without permission from the copyright holders.
However, recently, the issue of cross medium infringement has arisen regarding music videos.
Since MTV launched in 1981, music videos have been a necessity for every musician. Virtually every single that is released is accompanied by a music video. These videos are an important promotional tool, and as such they aim to garner as much attention for the star and the underlying song as possible. Therefore, music video productions can be expensive, lavish, and over the top. As a result, often times, the release of the music video is more anticipated than the release of the underlying song. This is especially true for stars like Lady Gaga, Beyonce and Rihanna whose music videos are works of art in their own right.
But is this work of art an original, or a copy? That has yet to be determined in the case of Rihanna’s recent music video for her single “S&M”. The video, released in February 2011, features several scenes depicted with bright poppy colors and an over-the-top campy feel. These scenes are strikingly similar to the still image works of pop-artist David LaChapelle. LaChapelle was not involved in the production of the music video. When he got word of how similar it is to his own works of art, he promptly filed suit against Rihanna for infringement, and requested that the video be enjoined from broadcasting in the United States.
(See here: http://www.dailymail.co.uk/tvshowbiz/article-1353935/Rihannas-S-M-music-video-strikingly-similar-David-LaChapelles-work.html, for a side by side comparison of LaChapelle’s work and stills from Rihanna’s music video).
Rihanna, and her music video director Melina Matsoukas, might have been inspired by LaChapelle’s work, and wanted to pay homage to it. Regardless of their intentions, whether good and pure, they may have infringed on LaChapelle’s right to produce derivatives of his works. Under the Copyright Act, a copyright holder has the exclusive right to prepare derivative works based upon the copyrighted work. The derivative work can be in any form which the original work may be recast or adapted for.
In 1988, a similar suit was brought by New Line Cinema, the company that produced the “Nightmare on Elm Street” movies, against the Fresh Prince and DJ Jazzy Jeff. That year, Prince and Jazzy produced and song and accompanying music video titled “Nightmare on My Street”. The music video appropriated imagery, setting and plot from the movie. In that case, the court found the imagery and overall feel of the music video was infringing on the copyright holders of the movie, and ordered an injunction barring the video from being broadcast in the United States pending trial. The video was buried, and a disclaimer stating it was not affiliated in any way with the “Nightmare on Elm Street” franchise was promptly added to it.
It is unclear what the results will be in Rihanna’s case. At the moment, the music video is still being broadcast in the United States, and no injunction has been granted.