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: