The singer Rihanna released a video for a song entitled ‘S&M’ in early 2011. Certain scenes from the video bore similarities to specific works by photographer David LaChapelle, who is noted for compositions involving fashion models, elaborate costumes and sets, and distinctive poses and lighting. LaChapelle alleged that the producers of the video had violated his copyright in certain of his photographs.

He was partially successful in US District Court: LaChapelle v Fenty (SDNY, 19 July 2011) [Link available here]. Unhelpful for Rihanna was evidence that her people had proposed a ‘LaChapelle-esque music video’ to a number of possible directors, and that some of the video’s storyboards consisted of the very photographs at the heart of the artist’s complaint. The fact that the video did not reproduce every detail of the original works didn’t matter: the ‘total concept and feel’ were clearly derived from the photos. Rihanna’s bogus-sounding fair-use defence that the borrowed material was a necessary part of the video’s commentary on her relationship with the media was rejected; that commentary was unrelated to the photographs and did not require use of them. Not all of Rihanna’s defences failed, however. The video’s generic S&M imagery was not a violation of LaChapelle’s copyright to the extent that it flowed naturally from the video’s choice of subject and did not reproduce specific elements in the photos. LaChapelle’s trademark and unfair competition claims also failed.

The exhibits attached to the decision are a bit racier than what one normally sees in the law reports.