Madonna sued for *imitating* a photographic pose in video- How far does copyright go?

Does this guy have any kind of a case?

Photographer’s son sues Madonna - Bourdin claims singer used dad’s images without permission

They can certainly file if they want to but that doesn’t mean they are going to win.

Near me in Pebble Beach, they sued some artist for doing a drawing/picture of a live Lone Cypress tree, which is their trademark. The guy couldn’t defend it so he has to agree to a whole bunch of dumb stuff including never doing an artistic image of that tree again.

This cite has photos v. video stills comparisons. It also has a link to complaint, which hasn’t been served to Madonna yet (as of my posting).

More than likely, I’m guessing that this will be dismissed. Most of these extraordinary suits (and anybody can file a suit about almost anything) wind up getting dismissed. The problem is that there’s a lot of buzz when they are filed, but not much reporting when they’re dismissed. This leaves the impression in many people’s mind that the suit was successfully litigated.


I have a copyright on the photo pose where the subject is either smiling, looking at the camera, or both.

Ok, so no one can take pictures of a woman speaking on the phone in a provocative pose?

And of course no shooting of a woman and her maid in the same frame.

This is ridiculous.

Well, it’s obvious from the examples on the Smoking Gun site that Madonna is intentionally recreating Bourdin’s images, so the case isn’t totally without merit. True, some of the images–like the one with the maid–do not really duplicate the original poses, but in context the reference to Bourdin’s work is clear. Still, I would call it an homage rather than an attempt at infringement. I suspect that what Bourdin hopes to get out of this is not really a judgment against Madonna, but simply publicity.

I have the copyright on holding up two fingers behind someone’s head in a photo. You all owe me, big time!

On a related note, I noticed that 3M has “Canary Yellow” Trademarked… I dont understand how a color can be trademarked… further more, shouldnt all Carbon Copy and 3 part forms be Illegal then?. If you “make” a new color and can verify that there is only one way to process/end up with that color, I think it would be ok to trade mark then.

Also, what Exactly Happened with Al Frannken and FOX News… isn’t this a ‘Relative’ to the OP ?

It can’t. I’m no lawyer, but I believe this means they have the right to use the phrase “Canary Yellow” when referring to a color. Others must call the color “canary”, “yellow”, or really anything they like (“infected pus”) - if nobody else has trademarked it.

When homage is outlawed, only outlaws will pay homage.

The court held a hearing on Fox’s motion for a preliminary injunction to prevent sale of the book with its current title. The judge literally laughed at Fox, rebuked them for purporting to be a news organisation while trying to suppress Franken’s freedom of speech, and then basically stated that should the matter ever get down to the merits, Fox’s trademark would most likely be found invalid, because “fair and balanced” is merely descriptive of a news service.

Fox dropped the suit.

there must not be any photographers here. It looks like it borders infringement to me…but alas is that’s subject to interpretation. The law is that way so that you can’t just recreate an image that you don’t want to pay for. It does look like Madonna was trying to pay homage, instead of stealing, but none the less you have to be careful.

A search of the trademark database give no entry for “Canary Yellow,” so this may be an urban legend.

However, it would be possible for 3M to trademark a color for any product similar to their Post-It Notes. It would not prevent others from using the name “Canary Yellow,” and would only affect those who made sticky notes. Making notes in that particular shade of yellow would be an infringement, since it would create confusion with 3M’s product.

Only in this limited case would there be an issue.

Links –

Fox’s motion denied –

Fox drops suit –

Quotes from the transcript of the hearing:

Turning to the issue of dilution:

Concluding –

As I understand copyright law, if they use the ORIGINAL image without permission, then they would be in violation. Since an entirely new image was created, then there would be no infringement.

Let’s put it this way . . .

An idea can’t be copyrighted. If I decide to take a picture of a bowl of fruit, then the picture itself (which is the intellectual product) is eligible for copyright. I can’t copyright the concept of the bowl of fruit as a subject.

There are exceptions, such as the use of a trademark or copyrighted image in an original work. If memory serves me right, Andy Worhol had a problem with his famous image of the Campbell’s soup can (which was just a lot of sabre rattling by the legal department of the company that owned the copyright - someone very high up in the company finally said “hey, it’s free publicity! Drop the suit!!!”). This is what I think the issue was with the aformentioned Lone Cypress Tree - unauthorized use of a trademark.

You understanding of copyright law is incorrect. There are reproduction rights, modification rights (which include derivative works: see MaDonna and Cambell’s) and distribution rights to protect.

Derivative work=“[A] work based upon one or more pre-existing works, such as a[n] . . . art reproduction . . . or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.’”[viii]

see: Ets-Hokin v. Skyy Spirits, Inc

Speaking as a lawyer, but not an intellectual property specialist, I would be flat-out astounded if this suit ever got anywhere.

The resemblance between the Madonna images and the Bourdin photos really

Speaking as a lawyer, but one who is not an intellectual property specialist, I would be astounded if this suit got anywhere.

The resemblance between the Madonna images and the Bourdin photographs honestly doesn’t seem all that great. And if they were, the right to parody would almost certainly serve as a protection.

It is not at all uncommon for artists to copy poses and arrangments used in previously published works, whether they are drawings, paintings or photographs. From time to time it is pointed out in the mass media that this has happened, but it has, in fact, been a standard practice among artists for centuries.

The practice is especially common among cartoonists and commercial illustrators.

It is so common, in fact, that a magazine about cartooning called Hogan’s Alley used to run a monthly feature in which readers sent in examples. (I say “used to” because I haven’t seen an issue in a long time. Is it still published?) The magazine would be very pointed in saying that it was not citing any of these examples as plagiarism–though, in fairness, some of them may have been.

In the comic strip and comic book fields the practice is commonly referred to as “swiping”; artists–even very accomplished artists–often have a kind of “catalog” of poses and layouts they have assembled from previously published comic strips and books.

One cartoonist, Sheldon Moldoff, was so legendary for his reliance on swipes that he appears to have never truly developed a style of his own. Jules Feiffer discusses the practice in his book The Great Comc Book Heroes, and published a Hawkman story draw by Moldoff as an example. Unfortunately, he didn’t reprint any of Moldoff’s source material, so his point was obscured somewhat. Suffice it to say that their were panels in the story which were pretty much copied verbatim from Hal Foster’s Prince Valiant strip.

Even the best cartoonists followed the practice. In a recent book about Hal Foster there are reproduced side-by-side an illustration from his Tarzan strip and a later panel from Alex Raymond’s Flash Gordon. The arrangement of the figures, and the architectural elements they walk past, are pretty much identical.

The practice is also common among painters. In fact, one distinguished school of painting, Neoclassicism, was founded on copying poses and arrangements for ancient paintings. When looking at a painting by Ingres or David there is a very good chance one is basically looking at a mural from Pompeii with the people dressed like 18th Century Frenchmen.

It doesn’t really matter to point out that the source material is extremely old in this case; artists didn’t go to Pompeii to sketch poses, but instead relied on contemporary reference material, such as Winkelmann’s published studies of Pompeii.

Similarly, the state of the law regarding photos of old works of art is very unclear at present. The 18th Century Swiss painter Fuseli’s classic painting The Nightmare is certainly not under copyright at this late date. But what about pictures of it? The Detroit Art Institute claims that the picture–which surely must be one of the most frequently parodied in history–is still under copyright in that it holds the copyright on the “official” pictures. Does this mean anything? Can one even claim the image in the photograph is copyrightable if the painting itself is in the public domain? The courts have not yet resolved these issues as regard Fuseli’s painting, or any other old works of art.

Some other examples which come readily to mind of artistic emulation/imitation:

Norman Rockwell’s Rosie the Riveter cover for The Saturday Evening Post was based on Michelangelo’s painting for the Sistine Chapel of the Sybil of Delphi.

The Steve Martin film Pennies from Heaven and That 70s Show have both parodied Edward T. Hopper’s Nighthawks.

Luis Bunuel’s Viridiana and Robert Altman’s MAS*H
both parodied Leonardo’s The Last Supper.

Some years back The Beef Council was held up to criticism (which I didn’t really understand) because a young cowboy in a promotional poster was based on a Nazi youth in an old propaganda poster, right down to the wrinkles in his shirt.

People had a cow when a painting of Oprah on the cover of TV Guide turned out to have Ann-Margret’s body as shown in an old photograph. The fact that Ann-Margert is so much more slender was, of course, a tip-off.

There was a fuss some years back when a painting in The Vatican of a young priest walking on a trail turned out to be based on a picture of the young Chairman Mao.

Finally, a photo of Madonna which appeared in Vanity Fair back in 1992 was modelled on a photo of 60s Playmate Gwen Wong, right down to the kind of socks she was wearing.

On the other hand, Jeffrey Koons was successfully sued some years ago when a painting of his was shown to be “taken” from a postcard of two people holding a litter of puppies–Koons had not copied the picture exactly, either, but had put whole new faces on the people. So who knows? Insanity happens…

I’m not sure what happened there with the spacing. Sorry.:smack:

As far as I can see, neither of the above links relate to the original question, which is about recreating a photograph. Circular 14, Copyright Regulation for Derivative Works, makes no reference to recreating a photograph, only to art reproduction (which typically refers to direct copies of artworks, as with making a photograph of a painting).

US Copyright law explicitly states that “In no case does copyright protection for an original work of authorship extend to any idea, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” (Section 102, title 17, US Code) (source).

The principle is that the artwork is copyrighted but the subject of the work and the act/process of making it is not copyrighted. As you can’t copyright an idea, theme, or storyline in a novel, it seems unlikely that you would be able to copyright an idea, theme, or situation in a photograph. Of course, case law is important in defining the exact scope of the law.

I looked at the comparative images and I think the guy has a great case. Too many images were too similar. Granted, it looks as though whoever choreographed the video did use the poses and tried to make things “different” enough, but I don’t think (s)he succeeded.

If it were one or two poses, I’d be inclined to agree that there is no case. You can use parts of people’s work without violating copyright. However, there were several poses that were obviously ripoff poses and the number of them just might be over the line, especially if those poses were part of a single work.

My guess is the choreographer took the chance because the photographer is dead and (s)he didn’t expect anyone else to be looking.