This week, artist Lina Iris Victor filed a federal lawsuit in the Southern District of New York alleging that her copyrights in three original artworks were infringed in the music video (link here) of a new song, “All the Stars,” which is featured on the soundtrack of the new Marvel movie Black Panther.  Named defendants include the song’s recording artists (Kendrick Lamar and SZA), the record label, and the video’s director and production company, among others.
 
The artist, whose works have been exhibited at major galleries, shows, and museums, asserts that the video copies the look and feel of her artworks as well as specific copyrightable elements of them.  The complaint also alleges, interestingly, that Victor was approached back in 2016 by someone from the film’s art department, who expressed interest in borrowing one of her original works, from her Constellation series, for the set of the Black Panther film; the artist ultimately found the terms of the request unacceptable and refused.  And in 2017, Victor was contacted by a PR firm who was working for Marvel and Disney to promote the Black Panther film and was interested in having Victor and other artists create works inspired by the movie; the artist again declined, apparently because the project would have required her to give an exclusive license for her work. 
 
But when the music video was released, she says, people immediately assumed that she had collaborated in its making or licensed her work.  The complaint lays out side-by-side comparisons of her artworks, or details from her works, next to various frames or details from frames of the video to support her claims.  The claims are based on an approximately twenty-second segment about three minutes into the approximately four-minute video; in the segment, models and Lamar are seen standing or walking through a set made up of gold lines, patterns, and shapes against a dark background.  The segment, Victor alleges, “directly copies” or makes a “close approximation” of some elements, including particular shapes, from her black-and-gold original works (Constellations I, Constellations II, and Constellations III).  She also alleges that the set “is a blatant copy of the look and feel” of her works.
 
Following a cease-and-desist letter (which was covered by the press), Victor filed her lawsuit, alleging copyright infringement, vicarious infringement, and contributory infringement.  The complaint seeks relief including not just her actual damages (which, she notes, should include damage to her reputation and the market for her works, as well as disgorgement of the defendants’ profits from the infringement), but also an injunction preventing the video from being further aired or publicized. 
 
Substantial Similarity, Fair Use May Be At Issue
 
The defendants have not yet filed any formal response to the complaint.  But the case raises some important questions.  A copyright infringement plaintiff must first show that his work was actually copied, and then must show that the copying amounts to an improper or wrongful appropriation.  A close similarity between two works is often relevant to proving both actual copying and wrongful copying, but not every actual copying is wrongful.  Courts use the term “probative similarity” to refer to the kind of similarity that indirectly evidences actual copying, including similarities between the unprotectable elements of the works.  In contrast, they use the term “substantial similarity” to refer to the kind of similarity that evidences wrongful appropriation; that is, the copying is illegal because a substantial similarity exists between the defendant's work and the protectable elements of plaintiff's.
 
Here, it seems likely that actual copying can be established, either by direct evidence of copying or by showing that the defendants had access to the copyrighted works and there are similarities that are probative of copying between the works, including similarities between the unprotected elements of the works.
 
But the question of substantial similarity, for purposes of whether the copying was wrongful, may well be a key question in the case.  The video does not copy the plaintiff’s artworks either in their entirety or verbatim, but instead features black-and-gold drawings that use shapes, patterns and lines quite similar to those in the artist’s original works, positioned in similar grids and arrangements. 
 
To determine whether two works are substantially similar—and thus whether any copying was wrongful—courts usually apply the “ordinary observer” test, which asks whether an ordinary observer, “unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.”  Where, however, a work's aesthetic appeal is due largely to unprotected elements, courts are more discerning, and ignore those aspects of a work that are unprotectable.  The substantial similarity analysis may be decided at the motion to dismiss stage, since it largely requires only a visual comparison of the works.  But courts have lamented that the “determination of the extent of similarity that will constitute a substantial, and hence infringing, similarity presents one of the most difficult questions in copyright law, and one that is the least susceptible of helpful generalizations.”  It can be difficult to determine whether similarities “are due to protected aesthetic expressions original to the allegedly infringed work, or whether the similarity is due to something in the original that is free for the taking.”  And while at least one commentator has opined that the defendants have the better of the argument here because what has been copied here is unprotectable elements of Victor’s work, courts have rejected the idea that they should mechanically dissect works into separate components and compare only those elements which are in themselves copyrightable; rather, they espouse a more “holistic” inquiry that “compares the contested work's “total concept and overall feel” with that of the allegedly infringed work.  (For another recent case raising questions about substantial similarity, see here.) 
 
Beyond the substantial similarity question, another likely issue in this case is, of course, fair use.  The twenty seconds of the video featuring the black and gold artwork may be at least arguably transformative (an important, but difficult, consideration in fair use cases), and not just because of the differences in the details of the arrangements of the shapes, lines, and patterns.  Even if the video used the plaintiff’s artwork verbatim (which it does not), the video transforms that two-dimensional artwork into a three-dimensional environment (partially made up of set pieces and partially made up of digital effects) in which live people stand and walk as the music plays in a segment of a larger music video.  The Ninth Circuit held that the fair use defense applied in a case a few years ago bearing some similarities to this one (there, an artist’s work had been incorporated, with minor alterations, into a video that played as a backdrop in live concert performances by rock band Green Day).  On the other hand, courts have held that merely translating a work into a different medium (for example, taking a two-dimensional black and white photo and creating from it a three-dimensional piece of sculpture) is not alone sufficient to render a work a protectable fair use.  And it’s difficult to say whether the video truly “manifest[s] an entirely different aesthetic,” altering the original with “new expression, meaning, or message” or creating “new information, new aesthetics, new insights and understandings” as the Second Circuit ruled in its landmark decision in Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013).  And at the very least, courts of late have been reluctant to rule on fair use at the motion to dismiss stage (as seen in the recent ruling in the Graham v. Prince litigation over appropriation artist Richard Prince’s “New Portrait” works).
 
We’ll continue to watch this case for developments in these thorny areas of copyright law.