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

[Shrinking_Violet]

Has anyone ever been sued for imitating that Marilyn Monroe pose, which seems to be pretty ubiquitous?

Julie

[fotosbyfrank]

*Originally posted by metroshane *
**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] **

I’m not a lawyer (although, I’ve played one in a movie). My understanding of what constitutes a derivative work is more towards written word, rather than other media. Remember that the “work product” is what ultimately is copyrighted. So, if I were to remake a movie using the original script (or, even a rewritten script), it would be derived from someone else’s work product. Little to no effort on my part would be required, thus, no work product was produced (several layers of copyright exist in this example: the script itself is considered to be one work product, and is copyrightable on its own. The completed movie is a second work product, and would also be eligible for copyright. The underlying problem is that the script’s copyright has been infringed, not the movie itself, which, since it DOES represent a new work product, is still copyrightable).

Applying this to the issue at hand, although the contents of the Madonna image have been used in a prior work, they are not subject to copyright (as they are a concept, and as such, uncopyrightable). The new image is an original work product, and regardless of the subject, does not infringe upon the copyright of the original.

[metroshane]

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).

Look up see: Ets-Hokin v. Skyy Spirits, Inc. Basically Skyy hired a photographer, didn’t want to pay his prices, then hired cheaper photogs to recreate his images. He won copyright to his images and won the infringement suit against skyy.

Of course pardody and satire are excused from copyright infringement. And just because there are many examples of people doing it, doesn’t make it legal.

[metroshane]

10:1 says they settle.

[CrazyMonkey]

I’m pretty certain Bourdin is well aware that the lawsuit is going to go nowhere. The important thing is, Mr. Nobody-I’ve-Ever-Heard-Of is now Mr. Genius-Behind-Madonna’s-Artist-Work in a very dramatic and public way. It’s great advertising for cheap (compare court costs to running a television ad), and is part of the reason why there should be a stiff penalty for filing frivolous lawsuits.

[Peach]

This isn’t the first time Madonna has been sued for imitating images from her favorite photographers.
In 1990 Horst sued over the use of images in the Vogue video.
I’m not sure what became of the case but I seem to remember her asking for permission to use the images, Horst said no, and she used them anyway!
Ha!

[Acsenray]

I’m sorry, CrazyMonkey, but even if you conclude that there is no way Bourdin will win, this is not a frivolous lawsuit, so the penalties you propose wouldn’t apply to him anyway. Bourdin has a reasonable argument that Madonna copied those photographs by recreating them. (Photocopying isn’t the only way to copy things.)

[smoke]

*Originally posted by Shrinking Violet *
**Has anyone ever been sued for imitating that Marilyn Monroe pose, which seems to be pretty ubiquitous?

Julie **

I was thinking the exact same thing. Also, haven’t there been plenty of parodies/imitations on the Beatles’ Abbey Road album cover?

[metroshane]

and is part of the reason why there should be a stiff penalty for filing frivolous lawsuits.

Do you have a legal opinion as to why this man does not have the right to protect his copyrights? Why is it frivolous?

copyright act of 1976, 17 usc 101 et seq

A ‘‘derivative work’’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, 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’’.

It’s clear to me and hopefully the judge that Madonna created a motion picture derivotive version of copyrighted material. I’ll eat crow if it gets thrown out, but you have to eat your had if the guy wins.

[Kalhoun]

I was under the impression (and correct me if I’m wrong) that she used the original and her “copycat” version was placed next to it. Like both photos are being shown. That’s my take, anyhoo.

[Peach]

*Originally posted by Kalhoun *
**I was under the impression (and correct me if I’m wrong) that she used the original and her “copycat” version was placed next to it. Like both photos are being shown. That’s my take, anyhoo. **

Kalhoun
what your probably thinking of is this…http://www.guybourdin.org/hollywood/

its been circulating the web since the hollywood video aired, comparing the two artists.