Copyright Infringement: Rihanna vs. David LeChapelle
Since its launch on YouTube on January 31st, Rihanna’s new music video for S&M has been viewed by over 12 million people around the world. However, Rhianna, her label and video production company are currently in the middle of a lawsuit filed by a top fashion photographer, David LaChapelle. The music video was directed by Melina Matsoukas, who had nothing to do with David, but the concept of the video is too similar to David’s eight photos that he had previously published. David argues that the S&M video copied the “composition, total concept, feel, tone, mood, theme, colours, props, settings, decors, wardrobe and lighting” from his original copyrighted work. In this case study, I will analyze why Rihanna’s use of David’s work is illegal as well as the implications of copyrights in the digital age.
The copyright of the pictures copied in Rihanna’s S&M video are owned by David LaChapelle in accordance of 1976 Copyright Act. The law states that as soon as the work is finished, copyright becomes a property of the author. When David took the pictures, he is entitled to the rights as an owner of copyright. After that, David could freely publicize his work, reproduce and make an imitative work of the original. These rights are exclusive for the copyright owner, so it is illegal for the producers of S&M video to imitate his work without asking permission from him. In fact, David has reported that no one from his creative team was asked for permission prior to the release of the video.
The Rihanna’s use of David LaChapelle’s work does not fall into any of the fair use activities. There are four factors for fair use: purpose of use, nature of copyrighted work, substantiality of use, and effects on the potential market. First of all, purpose of use means whether the copyrighted material is used for commercial purpose or non-profit purpose. The purpose of Rihanna’s S&M video was clearly commercial because the music video attracted the audiences and encouraged them to buy her song online. In fact, S&M had sold 173,000 digital copies in the United States during the sixth week and ranked 7th on Billboard Hot 100. This song is Rihanna’s 18th single to be a top 10 hit on the Billboard chart. In addition, since S&M is a spin-off from her popular album, “Loud,” which was released in fall 2010, we can also argue that S&M helps the album to generate more demand from the audiences. Although the music video itself is not sold for individual sales, it is part of the commercial process because the song accompanied by the vivid image in the video leaves strong impression among the viewers, making the song more attractive to purchase. Thus, the commercial purpose of use does not accept the music video as a fair use.
Secondly, nature of copyrighted work means whether the original work is factual or fictional. In the case of S&M video, the original work was not factual because the pictures were fictional work produced by David LaChapelle. However, this factor also imposes another problem that makes it a little hard to judge whether it is fair use or not. According to Stanford University Libraries, “you will have a stronger case of fair use if the material copied is from a published work than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his expression.” In other words, if the original work is published and available for the mass audiences, it is hard for the original author to keep the control over his/her work. David LaChapelle’s photos, including the ones copied in S&M video, have been published in the mainstream media as well as online. The photos similar to his work were taken between 1995 to 2002 and published in Vogue Italia. Also, his basic art concept, using vivid colors and controversial themes, is publicly available on his official website that is entirely made for exhibiting his work to the online audiences (Visit the website from here). In short, since LaChapelle’s work is shown everywhere, the producer of S&M video may possibly argue that LaChapelle doesn’t have an absolute control over his work. However, this argument is more likely to be denied because even the original work is available in media and on the Internet, it doesn’t become public domain, as we discussed copyrighted myths in class.
The third factor is substantiality of use, which means how much of the original work is copied in the subsequent work. If you take only a small portion of the original, you have more chance that it will be recognized as fair use. The S&M video would unfortunately be consider to copy the whole or the core concept of David LaChappelle’s work. Comparing the images side by side, you can easily spot the similarities between the scenes of the video and LaChappelle’s photos. The following is a side-by-side comparison of some scenes and pictures. (left: Rihanna's, right: David LaChapelle's)
Since there are some changes made in Rihanna’s video, some may argue that they are not exactly the same. However, coping partially doesn’t necessarily mean it’s fair use as Stanford University Libraries state, “your copying will not be a fair use if the portion taken is the "heart" of the work.” Thus, it is undeniable that the S&M video has taken the important concept of the LaChappelle’s artwork substantially.
Lastly, the fourth factor is effects on the potential market. Simply put, this is questioning whether the copy would impose any economical pressure to the original work. If the subsequent work becomes really popular, it is very possible for the original to lose revenue because it won’t be appealing to the customers anymore. I strongly think the S&M video could deteriorate the popularity of David LaChappelle’s work for two reasons. First, Rihanna is much more well-known compared to LaChappelle, making it easier for her to take over the virtual “ownership” of the concept. Regardless of her intension to do so, the video will be broadcasted to the global audiences, who may not hear about this copyright infringement issue at all. If this is the case, the viewers will make a mind connection between the video image and Rihanna, enabling her to hold the concept in a sense. The other reason for lost revenue is the fact that David LaChapelle was ironically known for his uniqueness. For a long time, his photos have exhibited distinctive creativity and his ability to implement the concept into the solid art form. However, now that a third-person recreated the work, it could give the audiences a negative impression that LaChapelle’s work is not “that” unique. This change in audience’s perception could decrease the popularity of David’s photographic work. In other words, his work will lose the premium it used to have before, causing a revenue loss.
This copyright infringement case of Rihanna’s S&M is not settled yet, so we will need to wait to see the consequence. Issues around copyright have become more complicated than ever before due to the advanced global network of media. David LaChapelle might have harder time to convince the judge because his work has very high exposure online now. Also, the aftermath of this case would be incredibly harmful for David because of the online availability of the video is out of control. In old days, when there is a copyright issue in media, it was easy to stop the linear flow on radio and Television. However, now that everything is digital, it is extremely difficult to control the spread of media on YouTube, video streaming website and social media. Any photographers, writers, creators and performers will need to pay extreme attention to their copyrighted material as well as the possible infringement that could damage their careers and totally change their lives.
Here is the video of Rihanna's S&M from YouTube.
