Last year, we wrote about the federal lawsuit filed by visual artist Lina Iris Viktor, which alleged that her copyrights in three original artworks were infringed in the music video of a song, “All the Stars,” from the soundtrack of last year’s blockbuster movie Black Panther.   She sued the song’s recording artists—Kendrick Lamar and SZA—as well as the record label and the video’s director and production company, among others.
 
Just before the new year, it was reported that the parties have apparently reached a tentative settlement, and the Court has now directed that the case be closed.   (S.D.N.Y. Docket No. 1:18-cv-01554-PAE.)
 
Background
 
Our previous post contains more detail, but in short, Viktor’s lawsuit focused on an approximately twenty-second segment (about three minutes into the video, link here), where Lamar and several models appear to be standing or moving through a backdrop of gold lines, patterns, and shapes against a dark background.  Viktor claimed that the clip either copied or made a “close approximation” of multiple elements of, as well as the look and feel of, three of her artworks (Constellations I, Constellations II, and Constellations III); her complaint contains side-by-side comparisons to show the similarities.  Viktor further alleged that she had been approached about including some of her work in the Black Panther film itself, and in promotional activities for the film, but she had declined.  She also claimed that, when the video was released, many people incorrectly believed she had collaborated in creating it or licensed her work to be used in it. 
 
Partial Summary Judgment Decision May Have Influenced Settlement
 
The recent settlement came in the wake of a favorable preliminary ruling for Viktor, issued in late October, on a specific question about damages.
 
In the suit, Viktor had claimed copyright infringement, vicarious infringement, and contributory infringement, and had sought actual damages—including damage to her reputation and the market for her works, as well as disgorgement of the defendants’ profits from the infringement)—as well as an injunction preventing the video from being further aired or publicized. 
 
Relatively early in the litigation, the defendants had sought to narrow the issues in the case and reduce the amount of money potentially at stake, by seeking a partial summary judgment, arguing that Viktor could not recover any profits from the recording of the song (either as a “single” or as part of an “album”), and further that she could not recover any damages for alleged harm to the integrity of her work or her reputation. 
 
As to the profits, under the Copyright Act, Viktor would be required to show a “causal relationship” between the infringement and the revenue at issue; if she could do that, the burden would then shift to the defendants to show the portion of their profits that were attributable to factors other than the infringement.  The defendants tried to argue that there was no non-speculative way that Viktor could show any causation between the purportedly infringing use of her work and the overall revenue produced by the song.  But the Court disagreed, holding that, where discovery was only in the early stages, it was simply premature for the Court to definitively limit the potential damages; rather, the question should await a more complete record, including expert testimony. 
 
Likewise, on the question of reputational damages, the Court ruled that it was too early to foreclose the possibility that Viktor might be able to make a compelling showing that the value of her works or reputation had been diminished in a non-speculative way by the video. 
 
Damages Issues Can Be a Critical Factor In Copyright Cases
 
The Court’s ruling specifically noted that the defendants would be free to raise those issues again following the completion of discovery, at which point the Court might be more willing to make a conclusive decision on them, prior to sending the case to a jury for trial (which was scheduled for this coming summer).  But instead, the parties reached a settlement, the terms of which have not been made public.
 
Because of the settlement, other litigants will not have the benefit of the Court’s views on some of the more complex copyright questions raised in the case, for example, the extent to which the video had sufficient “substantial similarity” to Viktor’s original works, and whether the video’s use of those works might constitute “fair use.”  (See our earlier post for some thoughts on those issues in the context of this case.)
 
But the settlement does illustrate how damages questions can impact the litigation dynamics between parties to a copyright dispute.  Some copyright plaintiffs can seek “statutory damages” (a fixed amount of damages per violation, as provided in the Copyright Act, see here).  But generally speaking, statutory damages are not usually available to plaintiffs who did not register the work at issue prior to the infringement—and that was apparently the situation for Viktor.  (Note that this is one important reason that artists should consider registering their works as a matter of routine business practice, instead of waiting until there is a dispute before registering; registration may preserve more avenues for an artist to pursue damages if and when litigation arises.)  Because Viktor was ineligible for statutory damages, she would have had to prove “actual damages,” which are often quite difficult to quantify in a non-speculative way in copyright cases.  Had the defendants prevailed on their partial summary judgment motion, that could have reduced the financial incentive for Viktor to continue to pursue the case.  But once the Court made it clear that the parties would have to complete discovery and expert discovery—which are often costly and time-consuming phases of litigation—both sides of the dispute apparently came back to the bargaining table and reached a settlement.  The Court’s October decision is also consistent with an ongoing trend in copyright cases, wherein courts, in all but the most clear-cut cases (examples here and here), are reluctant to issue major decisions on issues like fair use, substantial similarity, or de minimis use in the early pre-discovery phases of a case; rather, courts often direct the case to proceed with discovery so these issues can be evaluated on a full factual record.  That, in turn, means that many copyright litigants should not plan on receiving a quick decision on the merits of their case, but should prepare to incur the time and expense of discovery before the case can be adjudicated by a court. 
 
This appears to be the end of this high-profile dispute—just in time for the Grammy Awards in February, in which “All the Stars” is nominated in multiple categories.  But copyright infringement cases like this will continue to arise, and we’ll be following them when they do.