Idea/Expression Dichotomy Is Dead; Judge Allows Photographer's Lawsuit Against Rihanna To Move Forward

from the general-frantic-mood dept

Well, this is unfortunate. Back in February, we wrote about what seems like a positively ridiculous lawsuit from photographer David LaChapelle, against the singer Rihanna for her video S&M. LaChapelle claims that scenes in the video infringe on certain photographs he’s taken. You can see some of the comparisons here:

As I noted when the lawsuit was first filed, I couldn’t see how this passed the idea/expression dichotomy test. Copyright is only supposed to protect the specific expression, not the “idea.” And all of these looked like similar ideas, but I couldn’t see any direct copy of an expression. Apparently, the judge in the case disagrees. The judge rejected Rihanna’s motion for dismissal, saying that it seems likely that the video infringes on protectable expression. If that’s true, then there is no idea/expression dichotomy in copyright law anymore. Basically, if a judge wants to pretend an idea is the specific expression, he or she can.

For instance, the court pointed out that the video’s “Pink Room Scene” and LaChapelle’s “Striped Face” photograph both feature women dominating men in a domestic scene. That subject is not protectable, the court noted, because “the subjects flow naturally from the chosen idea” of sadomasochism.

But the particular way that Rihanna’s video portrayed the scenes–including the set, wardrobe, “generally frantic mood” and lighting–was “substantially similar” to LaChapelle images, even if all the details were not identical, the court concluded.

“Both works share the frantic and surreal mood of women dominating men in a hypersaturated, claustrophobic domestic space. Thus, I find that an ordinary observer may well overlook any differences and regard the aesthetic appeal of ?Striped Face? and the ?Pink Room Scene? as the same,” Judge Shira A. Scheindlin wrote in her decision.

General frantic mood? General frantic mood?!? How is that a fixed expression? And it’s not that not all the details were identical. It’s that the details are extremely different.

The judge is apparently also not a fan of fair use:

The judge dismissed Rihanna’s fair use defense out of hand, saying it was so misguided and “unavailing” that the pop singer failed to raise a fair use defense at all.

I’m not sure that sentence makes any sense. At the beginning it says the judge dismissed her defense, but at the end of the sentence it says she failed to raise the defense. But, still, it seems like you could make a really strong fair use case here, if you actually believe that there is protectable expression being copied (which I still don’t). The purpose seems totally transformative. The amount used seems tiny. And the impact on the market for the photographs seems like it’s only likely to be positive, not negative. How wouldn’t there be fair use here?

Of course, this is good news for the other photographer making very similar claims against Rihanna, as well as plenty of other photographers who think someone somewhere has done something marginally similar to their work.

Filed Under: , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Idea/Expression Dichotomy Is Dead; Judge Allows Photographer's Lawsuit Against Rihanna To Move Forward”

Subscribe: RSS Leave a comment
dwg says:

Re: Re:

As a monster proponent of Fair Use, I do think that Rihanna and her lawyers totally missed the boat on this one, at least in terms of even trying to plead it well. I’m basing this on the court’s opinion covering the defense–if the judge has done a lousy job of synthesizing the pleadings, I will certainly retract.

Anonymous Coward says:

Re: wow are there any judges who aren't brainwashed...

Even the judges have been brainwashed…

(Former) Federal Judge G. Thomas Porteus:

… failed to disclose that the lawyers in question had often provided him with cash. Thereafter, while a bench verdict (that is, a verdict by a judge sitting without a jury) was pending, he solicited and received from the lawyers appearing before him illegal gratuities in the form of cash and other things of value”

(Quoted material is from Judical Conference of the United States Determination.)

Dark Helmet (profile) says:

Re: Re:

Why should a collection of non-infringing exerpts together equate to infringement? If all the components are non-infringing on the actual expression, the collection of such wouldn’t be either. I would think the collection itself would be even more “idea” rather than “expression” than these specific examples themselves….

Anonymous Coward says:

Re: Re: Re:2 Re:

If I copy an entire book word for word, no particular word is infringing on its own, but collected together as such that would be infringement. So I don’t think the idea that if individual elements aren’t themselves infringent that precludes an overall piece from being infringent.

I don’t think this case has much merit, but simply looking at each piece in lieu of the whole doesn’t seem to be an accurate way of judging infringement.

CommonSense (profile) says:

Re: Re: Re:3 Re:

You’re looking at that wrong. In the example, it would be as follows:

I have the copyright on 3 individual sentences. You come up with 3 somewhat similar sentences, which individually do not infringe. The question would be, how do those three somewhat similar sentences suddenly become infringing when they are used in a book or poem?

CommonSense (profile) says:

Re: Re: Re:7 Re:

Wow….check this out in Thread view… then look at the comment that I responded to. Things might start making sense for you.

That coward used a book and words, but those two things don’t relate to a video and a picture. Since a picture is worth a thousand words, I subbed in sentence instead of word to make it closer to what we’re talking about, and then tried to show how he was still wrong. Of course, none of this is adding value to the discussion, so if you still don’t get it, don’t bother anymore…

dwg says:

Re: Re: Re:4 Re:

No, it’s not. See Nichols v. Universal Pictures Corp. There, two plays that center on Irish/Jewish romances disapproved of by the lovers’ parents. Similar plots, similar devices, similar stock characters and scenes…no infringement.

But darned good try with “that’s the way the law is.” A+ for conviction.

Anonymous Coward says:

Re: Re: Re:5 Re:

I have read Nichols v. Universal Pictures Corp. It does not contradict the prior AC’s comment or my approval of his comment.

In other words, it doesn’t say that copying the particular manner in which certain elements are creatively put together (whether in terms of some compilation or in terms of plot) is A-OK and not infringing, even if those elements are unprotectable when viewed individually.

If you have some case saying that copying the original way a bunch of unprotectable elements are put together is not infringement, I’d like to see it, but Feist and ever other selection/coordination/arrangement cases sort of contradict that.

You can also see that 7th Circuit case dealing with a description of the Twin Peaks plot for a more plot-oriented take (I forget the name).

Anonymous Coward says:

Re: Re: Re:3 Re:

This isn’t a case of several pieces of material added together to equal infringement of one other piece. This is a case where one piece is being considered infringement based on several other pieces that were arbitrarily selected by the plaintiff. The correct form of your example would be that if you copied words from several different places together to form a book the book, as an overall piece, would not be infringing.

There is a significant danger in this precedent. If I have a significant body of photography work nearly any short film could be ruled infringing based on this ‘work taken as a whole’ idea. I could grab photos I’d taken over the entire course of my career, pick the ones that match each scene best, and sue. How is any film supposed to avoid ‘copying’ any combination of work the photographer wants to present when they have no way of knowing how they’ll be arranged or what the full body of work even represents? This bar for infringement is deplorably low.

Anonymous Coward says:

Re: Re: Re:4 Re:

“This is a case where one piece is being considered infringement based on several other pieces that were arbitrarily selected by the plaintiff. “

Does the opinion say that copying any single element of LaChappelle’s photo(s) is infringing? If not, I don’t see how your claim is accurate.

Anonymous Coward says:

Re: Re: Re:

“Why should a collection of non-infringing exerpts together equate to infringement? “

That’s all any work is: a collection of non-infringing bits. An individual letter is noninfringing. An individual word is noninfringing. But when you start stringing together unoriginal bits in an original manner, and someone else copies aspects of that combination, that, in some cases at least, is infringing.

Anonymous Coward says:

Re: Re: Re:2 Re:

I don’t see how your question is relevant.

LaChappelle chose (or at least alleges he chose) to combine various elements into a photograph. He may have no protectable interest in any one element (a leash, for example), but in the original combination of many elements.

The judge has said that the alleged copying of many of those same elements in combination in the same or similar manner they were combined in LaChappelle’s photos constitutes (alleged) copying of protectable expression.

dwg says:

Re: Re: Re: Re:

This is a deplorable oversimplification of copyright law. To make the base unit of expression a letter, you are able to skip to any conclusion you want. Try instead to make that base unit anything that could be argued over as to whether it itself is protectible (or “original”) expression–that’s this case, and THAT is the correct basis for determining whether infringement exists in a given case.

Anonymous Coward says:

Re: Re: Re:2 Re:

I think you’re missing my point.

A letter is not protectable. A word is not protectable. But, at some point, the manner in which to put those things together becomes (or at least can become) protectable.

Similarly, “a murder” is not a protectable plot element, nor is “a love affair.” But at some point, the way in which you string together different plot elements becomes protectable, even though those individual elements are not.

What is wrong with that description?

I mean, obviously I’m not delving into issues like merger, scenes a fair, abandonment, etc., etc. But the notion that putting together unprotectable elements in an original way can be protected by copyright is not exactly a radical notion (see Feist).

Anonymous Coward says:

the patent office has now fashioned a machine to read the electrical signals in your brain, and will provide a mixture of copyright/patent/trademark protection to these ‘ideas’ which will be from here on out be known ‘copythought property’ we will be fitting citizens with a similar machie that detects if said citizen, here on out known as ‘slave’, produces the same electrical signal in their brain, if such a signal matches a copythought property pattern registered with the USPTO, the machine will automatically take a punishment fine out of the slave’s bank account.

Cloksin (profile) says:

If Rhianna is infringing on LaChapelle, doesn’t that mean that LaChapelle is infringing on any number of other photographers whose work has been copyrighted and produced much earlier than LaChapelle’s? Any number of Fem-domme photos posted on BDSM sites around the web such as,, and to name just a few.

If LaChapelle ends up winning this lawsuit, won’t that open the door for all those other photographers to turn around and sue LaChapelle for the same thing? I think in the long run any money he may recieve from this lawsuit would be miniscule compared to the money he would have to pay out to all those other photographers.

Prisoner 201 says:

Re: Re: Re: Re:

You missed (or dodged) the point.

Cloksin is saying that there is most likely pictures that are just as similar to LaChapelle’s as Rhianna’s, but were made before LaChapelle.

The internet is very big + rule 34. Q.E.D.

Anyway, congrats to all the photographers who will be able to sell their souls for big lawsuit dollars.

To all the photographers that will be sued, and to current and future photographers who dare not publish their works: sucks to be you. Next time try to be more original, you thieves.

Anonymous Coward says:

Re: Re: Re:4 Re:

I disagree that it was obviously referring not to general femdom photos, but to specific photographs that supposedly exist that are really similar to LaChappele’s.

Possible, maybe even plausible, but c’mon.

Anyway, you need to show actual copying, not just similarity, to win a copyright case. Of course, you can spend a lot of money defending before you win on those grounds.

Jeffrey Nonken (profile) says:

Re: Re: Re:5 Re:

I’m afraid I have to agree with Prisoner 201’s assessment here: Cloksin was probably trying to say that with so many femdom photos already in existence, surely several would be substantially similar to LaChapelle’s as well as predating it. Certainly that’s the impression I got, and it’s the only explanation that makes sense.

Anonymous Coward says:

Re: Re: Re:6 Re:

It’s possible that he meant this, but I certainly don’t think it’s the only explanation that makes sense.

The main thrust of the article seems to be “courts are giving protection to mere ideas and themes.” Thus, if you buy that premise, then LaChappelle is at risk from all the other preexisting “femdom” photogs out there (regardless of their particular details).

The Groove Tiger (profile) says:

Re: Re: Re:7 Re:

Keywords: “any number”.

Note that he didn’t say “all femdom” but “any number of femdom” pictures. Any number unequivocally would mean a subset of “all” pictures (non exlusive), this implies that “not all femdom pictures” would qualify. Since “all” wasn’t explicitly stated, the original poster clearly was refering to a smaller subset that qualified.

The qualifications of said subset were not specified. Still, this is enough to deduce that the original statement meant that “any number of fem-domme photos” refers to “a certain number of fem-domme photos that qualify”. This of course means that there is also a hypotetical number of fem-domme photos that “don’t qualify”.

The most obvious qualification of said photos would be ones that matched the qualifications stated by the judge, since said comment is in response to an article quoting that judge. Anything else would just be, like, stoopid.

Cloksin (profile) says:

Re: Re: Re:8 Re:

To clarify:

No, I did not mean that any photograph whose subject matter consists of “Fem-Domme” ideas would be eligible for a lawsuit against LaChapelle.

What I DID mean was that there are plenty of photographs that fall under the “Fem-Domme” category that have similar ideas as those portrayed in the photos posted in Mike’s original article.

e.g. A photograph of a woman wearing a latex hood. Go ahead, do a Google search for “woman in latex hood” and see how many results you get that are similar to the two photographs posted above. You can even turn safe search up to strict and you still get tons. If LaChapelle wins this case, each of the photographers that took those photographs in your Google image search prior to LaChapelle now have a precedent on which to sue LaChapelle.

Look at the other photos, do you think it would be really hard to find a photograph of a man walking on hands and knees wearing a collar, with a leash held by a woman walking behind him, in front of some big building? Oh, and you can even specify that the subjects are walking towards the right side of the photograph, with the leash in the woman’s hand and a long slender object in her right hand.

My point is that LaChapelle is not the first one to photograph this “idea”. And when you break down the composition of the photographs to these basic elements, you should be able to see that there is no infringement going on here.

But if you’re too stubborn to admit that, then when LaChapelle wins this case, he’s opening up a Pandora’s box of new litigation that has him as the target.

Anonymous Coward says:

Re: Re: Re:5 Re:

It’s obvious from the examples there was no actual copying. The images are completely different. The only similarity is the ideas behind them. The judge even says that:

“Thus, I find that an ordinary observer may well overlook any differences and regard the aesthetic appeal of ?Striped Face? and the ?Pink Room Scene? as the same,””

Anonymous Coward says:

Re: Re: Re:6 Re:

It is not obvious to me, though it certainly *might* have been coincidental.

The judge certainly does not say the only similarity is the ideas behind them. If the judge had said that, s/he would have dismissed the case.

Rather, the judge said an ordinary “may well” find that…..

In other words, it could be concluded differently by different ordinary observers, and should properly be decided by a jury (not a judge).

Anonymous Coward says:

Re: Re: Re:8 Re:

A judge determines issues of law. A jury determines issues of fact (unless the parties agree to have a judge determine those issues).

Whether or not particular things that are copied (or alleged to be copied) is a question of law applied to alleged facts.

At this stage in the case, the judge has to take all facts alleged in the complaint as true.

I have no idea what the rest of your post is getting at.

Anonymous Coward says:

Re: Re: Re:6 Re:

“a combination of access and substantial similarity, in place of proving actual copying-“

That’s not “in place of” showing actual copying. That is a means of showing actual copying.

Anyway, you have to convince a jury that there was actual copying. Yes, similarity is evidence that can be used to try to convince them.

Zot-Sindi says:

Re: Re: Re: Re:

yikes! and all this worry over pirates, seems everybody missed the dastardly idea ninjas hiding under our beds at night waiting use those “idea sponges” of theirs on us, kind of like ninja looters except they steal ideas instead of loot

copycats, pirates, freetards and now idea ninjas, what will it be next?

sheenyglass (profile) says:

A motion to dismiss is not a motion for summary judgment.

1) The original story is unclear, but after looking at the decision itself it bears mentioning that this was a motion to dismiss, meaning all of the plaintiff’s allegations are treated as true – there is really no determination about whether they are actually true. The motion to dismiss is really more about determining whether the plaintiffs allegations make out a valid claim of copyright infringement. Summary judgment is where you see start to see actual factual inquiry. (as a sidenote, I really wish reporting on court decisions would do a better job at addressing procedural posture – its kind of important for the significance of these rulings).

2) In the decision, the fair use argument is characterized as follows:

Defendants argue that, if they used LaChapelle?s protected material, it was to “critic[ize] how
Rihanna is treated by the press and comment on her relationship with the media.”

If this is sum and substance of Rihanna’s fair use argument, the judge is dead on that it is unavailing.

dwg says:

Re: A motion to dismiss is not a motion for summary judgment.

I concur. If that’s what Rihanna’s team came up with as their fair use proffer, she might want to find better lawyers.

I do note, though, that the judge’s mention that Rihanna set out to make a “LaChapelle-esque video” doesn’t, to me, weigh in favor of plaintiffs. “Inspired by” does not mean “illegally lifted from.” It’s hard for me not to read this as the judge reasoning backwards…as judges have been known to do, from time to time. In fact, this element of the complaint could have been used to defendant’s advantage in her pleading of fair use–specifically, that use of LaChapelle’s images, if any, was “transformative” from stills to motion…or something. But, without seeing the pleadings, it does look like Rihanna shit the bed on fair use.

PrometheeFeu (profile) says:

Re: Re: Re:

I live and work in the US. As it turns out, if a co-worker felt uncomfortable because of this, they could complain to a supervisor who would then face the option of exposing the company to a lawsuit (which they would loose easily based on precedent) or take some sort of disciplinary action against me. Let me guess what would happen… So no, telling people to piss off is not an option. As much as I don’t think this sort of images should be considered offensive, they are considered offensive and so I’m just asking Mike to give us a heads up so those of us who need to can read the article on a cellphone or wait until we get home in order to not get in trouble.

Anonymous Coward says:

Copyright is only supposed to protect the specific expression, not the “idea.” And all of these looked like similar ideas, but I couldn’t see any direct copy of an expression.

I’m not sure why, but you always gloss over the fact that non-literal copying can be infringing, that is, the test is whether they are “substantially similar.” The judge explains all this if you read the opinion.

To prove infringement under the Copyright Act, ??a plaintiff with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiff?s work; and (2) the copying is illegal because a substantial similarity exists between the defendant?s work and the protectible elements of plaintiff?s.??


??The standard test for substantial similarity between two items is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same.?? ?In applying the so-called ?ordinary observer test,? we ask whether ?an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.?? However, ?in looking at . . . two works of art to determine whether they are substantially similar, focus must be on the similarity of the expression of an idea or fact, not on the similarity of the facts, ideas or concepts themselves.?

Your “analysis” is quite silly. The judge full well acknowledges that there is an idea/expression dichotomy, and goes on to explain what the protectible elements are and why he thinks they were infringed.

As far as I can tell, the only one who doesn’t understand the law is you, not the judge.

How wouldn’t there be fair use here?

Have you ever even once thought that copying isn’t fair use?

Richard (profile) says:

Re: Re:

?The standard test for substantial similarity between two items is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same.?? ?In applying the so-called ?ordinary observer test,? we ask whether ?an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.?? However, ?in looking at . . . two works of art to determine whether they are substantially similar, focus must be on the similarity of the expression of an idea or fact, not on the similarity of the facts, ideas or concepts themselves.?

and my call, as an ordinary observer is that the alleged copy was not appropriated.

Anonymous Coward says:

Re: Re: Re:

All the judge is saying here is that there is enough evidence that there may be infringement that the case won’t be dismissed at this point. If you read the opinion (linked to above) you can see all the reasons why the judge thinks this. There’s also more image examples at the end of the opinion. It basically comes down to whether the “look and feel” are copied. Contrary to Mike’s silly and unsupported opinion to the contrary, the look and feel of something is protectible expression.

dwg says:

Re: Re: Re: Re:

The “overall look and feel” of something is not, alone, protectible. So no, it does not “basically come[] down to whether the ‘look and feel’ are copied.” It comes down to a whole lot more–specifically, whether anything protectible has been copied.

Nice use of buzzwords–lousy summation of the law.

Anonymous Coward says:

Re: Re: Re:3 Re:

… why should I continue this discussion?

I’m not urging you to. In fact, I don’t think there’s really a whole lot more to discuss.

Eldred asserted that the idea/expression dichotomy was one of copyright’s builtin accomodations for the first amendment. Eldred was wrong about that. There isn’t any idea/expression dichotomy. This case shows that clearly. We can all see the pictures.

So, while I have grave concerns about the current levels of so-called ?cyber-crime? on the internet today, nevertheless I have come to the conclusion that it’s necessary to maintain robust illegal channels in order to preserve opportunities for political dissent.

See you on the darknet.

Any Mouse (profile) says:

Re: Re:

The ‘protectable elements’ that the judge points to are all standard elements of femdom photography. Nothing in either of these pictures is strikingly unique, taken as a part. Not even the ‘frantic mood’ he so laughingly points at. Prior art, alone, should be enough to push that point across.

I realize ‘prior art’ is not a standard in copyright, however, if something is so generic as to be instantaneously recognized as part and parcel to a style…

Anonymous Coward says:

Re: Re: Re: Re:

That’s kind of misleading.

“prior art” as the term is used in a patent context means that if one guy did it once before, your invention isn’t novel and your claim is not valid.

That certainly is not the case in copyright law or scenes a faire (grecian urn, etc. etc.).

I’ve actually been meaning to write an article on this for a long time, but I think the scenes a faire doctrine can ultimately be reduced to an “originality” argument. If certain things are so common in your genre that you practically have to use them, then it’s not really “original” to you. Alternatively, if they are so common, then it’s hard to argue they were copied from the plaintiffs work (and not some other work), although that doesn’t necessarily work where copying is conceded.

Justin Levine (profile) says:

Re: Re:

I’m not sure why, but you always gloss over the fact that non-literal copying can be infringing, that is, the test is whether they are “substantially similar.”

Nobody disputes that the current state of the law allows for liability over “substantially similar” items, and that such items can be “infringing” under the current state of the law.

But (leaving aside the fact that none of the photos in this instance are “substantially” similar in any way) what Mike and I argue is that if you are going to have liability for “substantially similar” works, then its hypocritical for the legal establishment to claim that copyright doesn’t protect “ideas”. That is a false claim. It most certainly does protect “ideas” beyond their concrete expression. For the legal profession to state otherwise is a lie – pure and simple.

The very definition of “copying” implies a literal cloned reproduction of an item. There is no such thing as a “substantially similar” copy. You can certainly have a substantially similar “work” or “idea”. But if X is “substantially similar” to Y, then it is, by definition, not a “copy”.

The entire notion of copyright law protecting “derivative works” is completely inconsistent with the limitations that the social compromise over copyright was meant to embody. It also clearly hinders the creation of new works, rather than promotes them – which is what the very justification of the copyright clause is premised on.

Anonymous Coward says:

Re: Re: Re:

If you think anything other than “concrete” expression is “idea,” then you don’t understand how the terms “idea” and “expression” are used in copyright law.

There is the extremely concrete/specific on the the furthest expression end of the spectrum and the extremely vague/abstract on the furthest idea end of the spectrum.

that fact that something slightly more vague/abstract than the most specific/concrete example possible might be considered “expression” does not make the distinction between expression and idea a “lie.”

“The entire notion of copyright law protecting “derivative works” is completely inconsistent with the limitations that the social compromise over copyright was meant to embody.”

Please englighten us as to how the copyright was “meant” to allow immaterial variations on protected works.

Prisoner 201 says:

Re: Re: Re: Re:

If you think anything other than “concrete” expression is “idea,” then you don’t understand how the terms “idea” and “expression” are used in copyright law.

We understand how it is used. This lawsuit is an example of how it is used.

Mike and others argue that this use is not what was intended.

Anonymous Coward says:

Re: Re: Re:

‘Substantially similar’ is really only a proxy for market effect.

?Originality? used to be the sine qua non of copyright. The originality requirement was derived from the constitutional limitation implicit in ?authors and inventors?. See Feist.

Then Justice O’Connor retired and Judge Posner got his wacky economic theories elevated to constitutional heights. Now ???substantially similar? is really only a proxy for market effect.?

White Corn says:


That S&M photo should get LaChapelle sued if he were to have to take his own medicine. That’s an image that’s been part of the collective unconscious for ages. I’ve seen a photo of Isabella Stewart Gardner standing on the rocky coast with her best military male friend’s mansion as the backdrop holding leashes tethered to that kneeling friend and another unidentified male. In the photo she is dressed similarly to Rihanna and the body positions and uniforms match the Gardner photo more closely than the LaChapelle. However, since I saw this old photo it was hanging in the man’s mansion (long since passed down to relatives) and I’m not sure it’s ever been made public. Point being- these ideas and the expression of them did not originate with LaChapelle, or contemporary bondage porn.

Gracey (user link) says:

If this doesn’t get turned down by the end of the trial, this would be a nightmare.

You simply can’t copyright an idea or expression in a photograph (just the “actual” photograph). None of these images are exactly alike, and as far as I can see (as a photographer), have only been loosely based on the photographer’s images. Such images can easily have been conceived in the minds of other photographer’s without ever having seen this particular batch (I’ve experienced this many times). In my eyes, the images themselves are different enough from each other that I probably wouldn’t have connected them.

I don’t get it. This isn’t, as far as I can see, a copyright infringement, not in any way.

dwg says:

Re: Fair Use

Rihanna totally fails on the parody front, and she failed to even raise it as a defense. I mean, if you’re still talking about this case. I don’t know what you mean by “improvisation” as relates to the issues raised here.

And, just to be clear, I think this is a lousy lawsuit, so please don’t mistake my comment for supporting it.

Anonymous Coward says:

Mike is often wrong about the nature of idea/expression dichotomy.
His wrongness is confirmed in one particular instance.
Therefore the idea/expression dichotomy doesn’t exist.

Makes perfect sense, right?

Well, no. Just because the idea/expression dichotomy does not exist in the form Mike would like it to exist (i.e., with the line being draw in a must more permissive manner than most courts draw it), does not mean it doesn’t exist.

When you’re wrong, at least acknowledge *how* you were wrong. Don’t make up sky-is-falling nonsense.

Anonymous Coward says:

Re: Re: Re:

As I have explained above, combining elements that themselves may not be protectable is (or at least may be) considered expression. Maybe you didn’t see this.

Mike continually ignores this, though, in these types of articles, by focusing on the individual elements themselves.

This, of course, is all assuming that the individual elements (e.g., “frantic mood”) are not protectable.

The idea/expression dichotomy is a spectrum between vague and specific, and courts draw the line somewhere in the middle. Mike seems to think that the line is drawn only at the extremely specific end, and when courts draw it at all further toward the vague end (which they usually do), he acts as if the entire spectrum has disappeared.

In other words, the court says what was copied here consisted, in part, of expression, but Mike doesn’t say “huh, I guess I was wrong and the line between expression and idea isn’t where I thought it was.” Rather, he says the court is ignoring the distinction entirely.

Now that I’ve responded to your request, where are these “more and more posts saying the same damn thing” you’re referring to?

Anonymous Coward says:

Re: Re: Re: Re:

Saying there is a spectrum does not pin anything down. It becomes like a definition of ‘taller’. Do you mean taller than average? taller than anyone else in the room? or taller than the shortest person in the world? It could be anywhere — because it is a *relative* definition.

What is the point of allowing any variation?

Mike has in mind some economic grounding; which is the only thing that makes any sense. The law seems unhinged from that.

Anonymous Coward says:

Re: Re: Re:2 Re:

“Saying there is a spectrum does not pin anything down”

You’re absolutely right. But that’s the way it is. It is one of the most difficult questions to answer in copyright law, and it can only be answered on a case-by-case basis. Some opinions try to give guidance on where the line might be drawn in relation to particular types of works (see Gates Rubber Co. v. Bando Chemical Industries Ltd.), but that’s just general guidance.

“What is the point of allowing any variation?”

I don’t understand your question.

“Mike has in mind some economic grounding; which is the only thing that makes any sense.”

I have never seen Mike make an economic argument for only considering exact copying of literal expression to be infringing.

Anyway, as expressed by Judge Learned Hand many years ago, the argument for protecting more than just the exact, literal, specific expression has been summed up as follows: “It is of course essential to any protection of literary property . . . that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations.? Nichols v. Universal Pictures Co., 45 F.2d 119, 121 (2d Cir. 1930) (L. Hand, J.).

Anonymous Coward says:

Re: Re: Re:3 Re:

> > “What is the point of allowing any variation?”

> I don’t understand your question.

You do not seem to be considering why we have any of this copyright law at all.

Copies of good things are good! What is the point of restricting copies? — The only rational answer is the standard pragmatic economic justification (as exemplified by Landes & Posner).

We want to restrict or allow copies according to intended market/economic effect. *That* is what anchors all this. *That* is the reference point. That is ultimately how one should decide what is immaterial in ‘immaterial variation’.

Anonymous Coward says:

Re: Re: Re:4 Re:

“You do not seem to be considering why we have any of this copyright law at all.”

No, I just really don’t understand your use of English in the following case: “What is the point of allowing any variation?”

Anyway, as far as economic arguments go, you can certainly argue that anything that creates a greater incentive to creat (through greater control/reward) might have benefits that outweigh the detriments.

So, for example, the prospect of writing (or producing the movie) Harry Potter & The Chamber of Secrets and having no right to stop others from writing (or producing the movie for) Harry Potter & The Next 6 Blockbusters is a lesser incentive than having that control.

There are many complex economic factors to consider when determining whether that greater economic incentive is worth the restrictions placed on others, but simply saying the sequels/movies/etc. don’t lessen the market for the original does not answer the question.

Jeffrey Nonken (profile) says:

Re: Re: Re:

I keep thinking that we should just go ahead and legislate perpetual copyright, extended it forward to the end of time and backward to the beginning of time, and have done. Identifiable heirs inherit rights; if there are none, the expression in question cannot be used forevermore. No expression infringing on prior expression will be grandfathered in; no ex-post-facto punishment will be administered but no further infringement will be permitted. All such expression must now be explicitly licensed.

Then sit back and watch society collapse. It’ll be fun watching Disney implode.

I know I’m being silly here; there are plenty of flaws in my idea. I’m just thinking, if you actually managed to force those who are the strongest advocates of increased IP protection to acknowledge the origins of their own IP, the results would be very eye-opening. As it is the levels of hypocrisy are drowning several small countries.

out_of_the_blue says:

"Apparently, the judge in the case disagrees."

Yes, Mike, and I wish you’d get over your surprise that ACTUAL CASES ARE GOING AGAINST YOUR NOTIONS. When a yes/no decision must be made in a civil case, the margin only has to be 0.01%, and I think that the copyright side has more than that. So look for more BAD decisions and precedents to be established by knuckleheads sailing close to the wind in this area. I’d advise against anyone being on the edge in a time when “the law” is being riled up.

Copyright is becoming MORE entrenched after your efforts, not less. Indeed, to repeat what I’ve said before, you and your followers here have pretty much convinced me of the good that copyright does — and to hold that pirates aren’t freeloading but actually make for better products, whew.

Anonymous Coward says:

Re: "Apparently, the judge in the case disagrees."

You hit exactly the issue of civil versus criminal. In criminal, it’s “beyond a reasonable doubt”, in civil, the standard is more like “on the balance of probabilities”.

It’s the reason why OJ isn’t a murderer, but he will be paying for it on the civil side for the rest of his life.

It’s actually sort of classic. The anti-copyright people bitch and don’t want the law to be applied in a criminal manner, but then bitch just as hard when they realize that the standards for finding someone liable is way lower in civil courts.

As for this case, all the judge has ruled against is a dismissal, meaning that there is enough at least on the surface to merit further time in court. The judge didn’t find for the either side, only that there was enough information to merit a civil hearing.

The sky isn’t falling Mike, but you may not like the way it hangs.

Zot-Sindi says:

Re: Re: "Apparently, the judge in the case disagrees."

also, i have no idea what we had to do with “proving” how wonderful and awesome copyright when just about every article i’ve read on the subject here seems to pointing out how critically flawed it is… err, whoops, there i go again spouting my heretical blasphemy against the sacred cow that is copyright, obviously a demon spawn from the pits of freetard hell trying to tempt innocents away from it’s holy perfection into giving their precious property away to the clutches of my dark lord

dwg says:

Re: "Apparently, the judge in the case disagrees."

This isn’t an “actual case.” It’s an opinion that’s part of a case–the “actual case” will have to wait for this opinion to become any kind of binding anything.

And, dude: read the caselaw if you’re going to talk about actual cases, and please cite some. Because I’ve got more against than for, on this one.

Anonymous Coward says:

I have a idea!

I’m going to patent, trademark and copyright every idea I have or have ever had. If you steal any of my ideas I’ll sue you for all you are worth. As Nathan Myhrvold said on NPRs This American Life, …ideas have value. My Ideas are so valuable that you had better pay me and my lawyers if you dare to have the same one. … so there!

Jamey says:

Queen video?

That third pair of pictures – *BOTH* of them reminded me of an old Queen video for _I Want To Break Free_.

Besides, there’s only, generally speaking, bathrooms, bedrooms, kitchens, living rooms, and entryways. They can be black, grey, brown, white, red, pink, orange, yellow, green, blue, or purple. The mood will inevitably be relaxed, anxious, sexy, or a few other moods. That’s only a couple of hundred different possible rooms. Would the judge care to specify which combinations are *NOT* copyrighted, perhaps copyrighted a dozen times or so?

Anonymous Coward says:

Pay me.

When I was 5, I had this recurring dream where I would use the laundry chute at my grandparents house to take me to the attic to a pink room that had a round bed, with a stuffed animal fur covered comforter, all the soda and candy I ever wanted, and all of these huge stuffed animals. This was in 1975.

I described all of this in an AOL Chat room back in 1995.

Pay up David. 🙂

Lyn Horton (user link) says:

Sampling Art

This has been going on for years. The best example is the late Robert Rauschenberg; he constantly borrowed images from culture to fulfill his image needs. Andy Warhol is a PRIMARY example. It is now happening more blatantly, consistent with the present day culture. No one should make hay about it unless it is complete and total copying of the art: size, materials, image. So move on, and do something creative.

White Corn says:

Re: Sampling Art

Am in complete agreement with this sentiment, but being reasonable, being creative, and/or moving on doesn’t generate income for the lawyers or the sue-happy narcissistic artists with personality disorders. Hence where we’ve ended up today. Ask some of the copyright supporting brigade who their favorite modern or contemporary artists are and I bet a lot will have Rauschenberg, Warhol, and Picasso on that list. Then they’ll add the caveat that none of those artists should have gotten away with appropriating imagery, but it was a different time, and they were geniuses who didn’t need to resort to that so it’s a small part of their body of work, etc. The cognitive dissonance is beyond frustrating.

TBukher (profile) says:

I think this passes the idea/expression dichotomy threshold

Per the judge’s decision:

LaChapelle?s ?Noisy Frame? and the Video?s ?Press Scene? both convey the idea of a female celebrity helpless before the predatory gaze of the media? both works also feature the woman with her back against a bright teal-blue wall, upon which the elbow of her raised arm casts a sharp dark shadow. These specific choices concerning staging and color are not necessary to express the concept of a helpless female celebrity being preyed upon by the media.

Our analysis.

Anonymous Coward says:


Exactly my point of view.

Taken individually, all or any of these images could fall under reasonable doubt to close the lawsuit, however the fact that Rihanna’s video contained 3 scenes “substantially similar” to that of the photographer’s work, leads one to believe that some producer, some director, or some stage-setter in the video’s making ran into these pictures and “borrowed” them to use as fodder.

Anonymous Coward says:


I would agree with you, if say, different scenes were comparably similar to individual photographs taken by different photographers.

However, that isn’t the case. The scenes in the video depict various situations therein contained in One photographer’s portfolio.

I would favor the analogy of a basic college textbook: arguably, it does not contain any new information–instead, it takes from work already done, sampling different topics, but organizing them in a way that is, for the sake of this example, unique to that book.

Take any of those topics individually, from different books, and pin pointing infringement becomes difficult, as the same topic can be found more than once in different forms.

Take more than one topic from the same book, and organize them similarly: suddenly infringement becomes apparent because more than one part of collected work simulates the original.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...