When it comes to intellectual property, I’m one of the biggest supporters that you’ll ever meet. My view is that if you invent something or create something, it’s yours. At the same time, I’m also able to recognize that sometimes, with regard to concepts or ideas, it’s hard to not borrow something sometimes and reinterpret them.
As a photographer, for example, I understand that someone else might use a similar background or angle for a photo that I might use. Similarly, I might end up using similar angles and backgrounds that another photographer has used. Neither of us is, most likely, doing it to rip the other off.
But what if we could successfully sue someone who has a similar style or theme in our photographs? I use the term “successfully” because anyone can attempt to sue anyone else but it then becomes an issue for the courts to determine if the lawsuit can proceed.
Over the last few weeks, I’ve come across not one but
four stories pertaining to artistic infringement lawsuits and only one of them—to me, anyway—seems to have teeth. Moreover, the other three actually have me wondering if they can set a rather broad precedent if they’re allowed to continue (and one of them has been allowed to proceed by the judge in the matter).
Back in March of this year,
ARTINFO’s Andrew M. Goldstein published a story about a
lawsuit filed by photographer Gagosian Cariou against Richard Prince, who clearly used Cariou’s images without Cariou’s permission. It appeared to be an open-and-shut case. Over the last few weeks, though, I’ve discovered three lawsuits that have me not only scratching my head, but also wondering if it opens the door for me to sue others who might take photos similar to mine. What’s more, they make me wonder if I could be sued by others who may have similar shots.
A few days ago I saw a story on TV about singer Rihanna and her associates being
sued by photographer David LaChapelle because Rihanna’s music video for the song “S&M” used poses, props, and lighting that were quite similar to photographs that LaChapelle took of the singer before the video came out. At first I thought that maybe Rihanna used LaChapelle’s actual photos, but after reading stories about the suit it turned out not to be the case. LaChapelle was suing for similarities of “composition, total concept, feel, tone, mood, theme, colors, props, settings, decors, wardrobe and lighting.”
My questions, and more specifically concerns related to future lawsuits, are related to the idea that Mr. LaChapelle appears to be claiming ownership of visual concepts as opposed to simply direct images. I wasn’t aware that “feel, tone, mood, theme, colors, props, settings, decors, wardrobe and lighting” were things which could be placed under copyright. And given that Mr. LaChapelle didn’t invent the use of ropes, latex, or dog leashes, I’m kind of confused on how the lawsuit has been given the go-ahead by the New York judge who is handling the case. If Mr. LaChapelle wins the suit, does that give him ownership rights of those things from this point forward?
A second lawsuit that I questioned was that of Janine “Jah Jah” Gordon, who
sued photographer Ryan McGinley for $30,000, claiming that McGinley “stole her visual style and subject matter.” Some of the
images that I’ve seen used for comparison shots are roughly similar, but are also similar to dozens of other photos that I’ve seen on
deviantART and
Flickr. The “style” in question appears to be use of poses, people jumping, and excessive use of sky in the images. Can these things be “owned” by one photographer and off-limits to the rest of us? Obviously a court will decide, but as
Artnet’s Rachel Corbett wrote: “Copyright law does not protect categories like ideas, principles or explanations—only their manifestations.” (As an aside, this case turned a bit ugly when Ms. Gordon
reportedly commented on Facebook: “I hope I can [end the suit] legally—because if it comes down to physically stopping him—he is going to get hurt—the gangsters and thugs in many of the photos are my friends. [smiley face]”)
The third lawsuit was also related to “owning” ideas. Back in December, artist Jeff Koons
attempted to sue a Canadian company because they were selling bookends that were shaped like balloon dogs (the twisty ones made by clowns at birthday parties). The bookends had the same shape as a metal sculpture that he has on display at the Metropolitan Museum of Art. The company did not use his name anywhere to market their bookends, but Mr. Koons appeared to be claiming ownership of the shape of the balloon dog. Given that balloon dogs have been in existence since before Mr. Koons made his sculpture, a lawsuit seemed odd. (The lawsuit has since been dropped.)
For the record, I don’t know any of the artists in question for any of these stories. In fact, after looking at their work, I like much of it—a lot. What has me concerned, however, is the possibility that lawsuits are going to become commonplace in the world of photography if something that would otherwise be commonplace is suddenly claimed as being “owned” by a particular photographer. Can I be sued by Mr. LaChapelle if I photograph a woman lying in a field of tall grass, similar to his shot of Angelina Jolie? Can I be sued by Ms. Gordon if I use too much sky or a person jumping or a person with their arm at a certain angle? I’m not suggesting that they would, but the lawsuits do raise questions about “ownership” of things that are otherwise not possible to “own.”
