Rihanna’s raunchy “S+M” music video causes a stir, in more ways than one

LaChapelle’s main claim appears to be that parts of Rihanna’s “S+M” music video were copied from a number of his photographs.  The photos, which do not feature Rihanna, resemble certain elements in Rihanna’s music video.  The “S+M” title of the video, which is by no means accidental, refers to its sexualised, fetished nature.  This is relevant for reasons discussed below.

In Australia, it is uncontroversial that copyright subsists in a photograph  (s 10 Copyright Act 1968 (Cth); s 32 Copyright Act 1968 (Cth)).  Here, the question will be whether Rihanna’s music video reproduces a substantial part of each of LaChapelle’s photos.  That’s an interesting issue given that – in the present case – Rihanna has created a music video whereas LaChapelle’s works are still photographs. 

This means there is an important preliminary question about how the Court would undertake the relevant comparison, at least in Australia.  The video is likely to be regarded as a cinematograph film, which is a different category of work than a photograph (a type of artistic work).  Indeed, the definition of a photograph in s 10(1) of the Australian Copyright Act expressly precludes “an article or thing in which visual images forming part of a cinematograph film may have been embodied”.  Therefore, will the Court be prepared to consider whether there has been reproduction from one kind of work to another?  If the video is assessed as a moving ‘reel’, then the answer might be ‘no’. 

Alternatively, on the basis that both works are a form of digital media, the Court might be prepared to undertake a side by side comparison of a single, visual image from the video, as against the relevant photograph, to see whether its composition is so similar that it should be regarded as an infringement. 

In Australia, Network Ten Pty Ltd v TCN Channel Nine Pty Limited [2004] HCA 14 (“The Panel” case) seems to shed some light on these issues.  In that case, the High Court viewed a “television broadcast” as an episode of the Australian TV show, “The Panel”, from beginning to end, rather than the individual series of images that made up the program.  However, it was found that a single image could still infringe copyright if the image was a substantial part of the particular broadcast or video.  This suggests that Australian courts may be open to a side-by-side comparison of different media forms, but this interesting question remains largely untested here.

If a direct comparison of the photographs against the screenshots from the music video is permitted (which can be viewed here, thanks to technology blog, Techdirt), there are a number of similarities.  Yes, both feature leashes, latex masks and risqué costumes.  But there are also some clear differences.

In particular, the costumes, colours, sets and poses in Rihanna’s video are not the same as those used in the photos.  The disputed parts of the music video feature Rihanna (obviously), Perez Hilton and other models who were all absent from the photos.

It appears that, rather than complaining about the precise nature of the reproduction, LaChapelle has taken issue with the fact that the ideas or general concepts behind his photos and Rihanna’s “S+M” music video are the same, and that they match his distinctive style so that people might think he is the creator.  For those not familiar with his work, his hero Andy Warhol provided LaChapelle with his first big break as a photographer, and he has been capturing images of the famous through his lens ever since.  As his official website describes, LaChapelle has a “colorful, smooth and extroverted style … filled with sensuality, fantasy, and dark adventure…  He has photographed hundreds of celebrities, always depicted provocatively, usually in full or partial nudity.”

In Australia though, the purpose of copyright is to protect the expression of the work, not its underlying themes, style or ideas.  In practice, this usually leads to a detailed comparison of the elements of the work in suit, and those which have been copied, to determine whether there is sufficient objective similarity to justify a finding that a substantial part has been reproduced, or adapted to another format.  The reports we have seen do not discuss whether LaChapelle has evidence of actual copying. 

We have not seen the Complaint, and so it is unclear whether copyright is the sole means of redress.  If LaChapelle is concerned his style has been appropriated, then if the suit were brought in Australia, there might be grounds for a claim of misrepresentation or passing off.

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