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Tuesday, October 18, 2011

Stay On Track

Before filing a lawsuit, consider the possible ramifications and what victory or loss will accomplish

One of the inevitable realities that any business involved in image creation and/or licensing will encounter is discovering instances where the business’ copyrights have been infringed. It’s important to keep business goals in mind when confronted with any sort of legal issue, and infringement is no exception.

Increasingly, I find that people have difficulty keeping business goals in mind. Recently, when discussing potential courses of action for addressing an instance of infringement, I was confronted with the question: “What’s the point to copyright law if I can’t punish those who copy my work?” I would have been stunned by the question if not for the fact that I’m faced with more or less the same question on a regular basis. The answer does little to ameliorate the inquirer’s anger, however. Invariably, those who feel violated want the law to punish the infringer; they want the infringer to be made to do more than compensate the owner for the unauthorized use, but rather, that the infringer be made to suffer. However, it’s important to realize that this sort of thinking is counterproductive from a business perspective.

Upon discovering an instance of infringement, the chief goal of any business should be to end the infringing conduct and, if possible, put a mechanism in place for punishing any repeat violations in the future. If the business is able to recover any money to help compensate or offset the value of the use, or to offset the attorney’s fees involved, the business should consider itself ahead of the game. Although it may be a vast oversimplification, attorney’s fees incurred in the course of defending a business from adverse claims and pursuing actions to collect money for the business are generally deductible as business expenses—if nothing else, it’s worth a quick call to your tax advisor to determine if you can claim the cost of pursuing infringement matters as deductible business expenses.

“This Is Not Personal. It’s Strictly Business.”

Earlier this year, Los Angeles-based photographer David LaChapelle filed suit against Rihanna, Black Dog Films and Island Def Jam Music Group. In the complaint filed in U.S. District Court in New York, LaChapelle contends that Rihanna’s music video, S&M, was copied from his images. In addition to an injunction, LaChapelle—whose complaint alleges that he charges up to $1 million for directing/producing a music video—seeks not less than $1 million in damages for copyright infringement. In a statement that his assistant, Hugo Martinez, read for National Public Radio, LaChapelle said, “This is not personal. It’s strictly business.”

The case isn’t without its potential problems, however, not the least being that LaChapelle’s claims are predicated upon scenes in the music video that he contends were copied from eight of his images. Attorneys for Rihanna and the other defendants have already filed papers attacking the heart of LaChapelle’s claims, and arguing that the eight images, “by their nature, present posed images frozen in place; the angle, lighting and subject of each image is forever static and unchanging. In contrast, the [S&M music video] is a motion picture set to music—moving at a frantic pace, with the camera and subjects constantly in motion, and the lighting, focus and angle of the shots continually changing. The only thing in common between [LaChapelle’s eight images] and the [S&M music video] is that they invoke common concepts and types of props associated with S&M practices (i.e., leather- or latex-clad dominatrices, whips, people in restraints, men on leashes, and the like) but which are given dissimilar expression.”

Undoubtedly, one of the recurring themes in the LaChapelle case will be the distinction between the expression of ideas and the ideas themselves, often referred to as the idea-expression dichotomy. Copyright law protects only the expression of ideas, but not the ideas underlying the expression. As a result, one generally can copy the ideas without infringing copyright.

The defendants have already presented the court with numerous examples of cases in which the ideas embodied in a photo were used to create other works without being infringing. One of the cases involves an image created by New York-based photographer Bill Diodato depicting “the bottom portion of [a bathroom] stall and a woman’s feet in pink shoes decorated with green, yellow and purple leaves, with thin, pink straps crisscrossing up her legs. The woman’s lime green underpants are taut just above her ankles. A light brown handbag rests on the floor next to the woman’s left foot, and a white toilet is visible in the background. The woman’s feet are on the floor, her heels raised at a stiff angle by the heels of her shoes. The woman’s ankles are turned in, with her toes painted red.” Diodato submitted the image to Kate Spade in January 2003. Within a few months, Kate Spade hired photographer Jessica Craig-Martin to create an image similar to Diodato’s, with all of the same major elements except for the underwear. The image was featured in the ad campaign that Kate Spade launched in November 2003. Diodato sued for copyright infringement.


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