You Be the Judge: Did Rihanna Infringe David LaChapelle’s Work?

As we reported two days ago, David LaChapelle has sued pop singer Rihanna, charging that her new music video called “S&M” was “directly derived from and is substantially similar to” his images.

Does he have a case? You decide. Below are the exhibits from David LaChapelle’s claim, showing his images side-by-side with frame grabs from Rihanna’s video.

As intellectual property attorney Nancy Wolff explained in our previous story, the case turns not on whether the “S&M” video copied LaChapelle’s ideas. (Ideas are not protected by copyright law.) Instead, the legal question is whether the video copied LaChapelle’s executions too closely. In other words, is the video “substantially similar” enough to LaChapelle’s images to constitute copyright infringement?

The “substantially similar” standard is subjective, but courts decide by comparing distinct copyrightable elements of the executions. Those elements include composition, format, camera angle, lighting, props, styling, and other factors.

As a judge, you have three basic options when you do the comparison:

1. You can decide that no reasonable jury would find substantial similarity, and dismiss the case. (The plaintiff could appeal.)

2. You can decide that any reasonable jury would find substantially similarity, and declare victory for the plaintiff. (The defendant could appeal, but would be under pressure to settle.)

3. You can decide you’re not sure what a reasonable jury might decide–and send the case to trial by jury.

Without further ado, here are the exhibits. In each instance, David LaChapelle’s images are on the left, while the “S&M” video frame grabs are on the right:

16 Responses to “You Be the Judge: Did Rihanna Infringe David LaChapelle’s Work?”

  1. Aaron Lindberg Says:

    Absolutely, changing a few details here and there wont hide the fact that he was blatantly ripped off.

  2. Sharon Says:

    I’d say a couple of sets are similar at best.

  3. mike m Says:

    Yes the subject matter may be similar to LaChapelle’s photos but in that case, maybe the estates of Helmut Newton and Robert Mapplethorpe should sue David LaChapelle.

  4. Tim Halberg Says:

    LaChapelle just hasn’t been getting enough attention lately and he’s looking for a way to pump his name in the media again.

    These definitely look quite “inspired.” I’d send it to trial just to let LaChapelle get a little bit of attention that he wants, but we can almost rest assured that a jury is going to laugh at him.

  5. Leon Says:

    Spookily similar in a couple of instances – especially the first and third set

  6. Rob Says:

    Imitation is the highest form of flattery. There is one blaring difference in all of this, and through all of my reading on this situation most people seem to over look it completely. Mr LaChapelle’s work is still photography and Rihanna’s “video” is just that a video.
    As for claiming the work is “substantially similar” justifying a lawsuit, I think that it is a bit far fetched.
    Think out this for a second, if this wins we could see lawsuits all over the place because things as “substantially similar”. For example the owner to the rights of Shakespeare ‘s “Romeo and Juliet” could sue the very popular “West Side Story” on the same grounds. Toyota could sue Ford for how similar the Fiesta looks the the Yaris. Even for the young kids, Justin Bieber could be sued over his hair cut by Jesse McCarntey (or better yet half the cast of the Brady bunch) because he (they) had the hair cut way earlier than Bieber.
    The list could just go on and on.
    Before you throw me under the bus on this one I agree that the work is very similar. I also this though that Rihanna herself probably had never seen Mr LaChapelle’s work.
    I think that the lawsuit should be aimed at the director and creative director of the video as it is there responsibility to form the concept of the video and see it through all stages of production. Rihanna’s job in all of this hoopla was more than likely to show up get dressed up and lip sync the lyrics to her songs in front of the camera.
    There is one major benefit to Mr LaChapelle’s suing a music “A lister”, he is getting an awful lot of free publicity of his work. (not that he needs it)

  7. Jatnna Says:

    Actually, according to Rolling Stone some of LaChapelle’s images were used in the storyboard of this video


  8. Scott Meadows Says:

    This is going to be a “teachable moment” like Nussenzweig v. DiCorcia if it is not quietly settled out of court.

  9. Tweets that mention PDN Pulse » Blog Archive » You Be the Judge: Did Rihanna Infringe David LaChapelle’s Work? -- Says:

    […] This post was mentioned on Twitter by Photo District News, Trevin Chow and peoplous, NewPhotoDigest. NewPhotoDigest said: RT @pdnonline: Calling armchair judges: compare images, decide if Rihanna's vid infringed David LaChapelle's photos. […]

  10. Elena Says:

    I see a lot of similarities in different ways but i think it is the conceptual part that is very very close to the original photographs…Now there are some images of LaChapelle’s that seem to copy Helmut Newton’s work…So it seems many are influenced by other photographers in visions…

  11. Simon Winnall Says:

    Its a complete rip!

  12. Roger Halstead Says:

    There is some nuance here beyond the “substantially similar.” There are elements which don’t get copyright protection because they are part of the genre-the scènes à fair.

    There’s an interesting (and funny) discussion of it here:

  13. Photo Round-up | Morel Studio Support Says:

    […] – Fashion maven David LaChapelle is suing Rhianna over copyright infringement in her new video, S&M. Photo District News has some comparisons. […]

  14. edward olive photographer Says:

    Clearly its just a cheap copy from some idiot video director masquerading as an artist but is no more than a con artist.

    Sue the fool.

  15. dbltapp Says:

    For entertainment value, send it to trial. Then video the jurors deliberating…

  16. Humberto Says:

    Rihanna came up with the idea? I think not. The video is influenced by the style? I think so. The point is if the artist is the owner of style, I think not. We are in the world of influences and no one can claims not to be influenced by anyone …