*LEGAL ISSUES KLAXON*
– According to The New York Times, a lawyer working on behalf of British-Liberian artist Lina Iris Viktor has sent a letter alleging some imagery in the Kendrick Lamar and SZA “All the Stars” music video violated the copyright of her artwork. The song is taken from the Black Panther soundtrack and features a 19-second segment starting at the 2:59 mark which, in Viktor’s view, bears striking similarity to her gold-patterned work.
– The letter, sent to the head of Top Dawg Entertainment, says that the offending section of the video “incorporates not just the immediately-identifiable and unique look of her work, but also many of the specific copyrightable elements in the ‘Constellations’ series of paintings, including stylised motifs of mythical animals, gilded geometric forms on a black background and distinctively textured areas and patterns, arrayed in a grid-like arrangement of forms.”
– Speaking to The New York Times, Viktor said that what mattered to her wasn’t financial compensation but the principle of the matter itself. She said she wanted acknowledgement and a public apology for the allegedly unauthorised use of her work by the company.
– Okay, but is there a case here? We don’t know shit about law, so we called up a copyright lawyer to find out what this may mean for independent artists. Does one person ever stand a chance against bigger companies? Can we not have just one thing that doesn’t involve someone somewhere getting fucked over? Over to Eamon Chawke, an Intellectual Property lawyer at BRIFFA.
Noisey: Hiya Eamon! Tell us… What exactly is copyright violation or infringement in layman's terms?
Eamon Chawke: Under copyright legislation, there are a number of restricted acts that can only be done by the copyright owner or with his or her consent.
One of the restricted acts is the right to copy the work. Another is the right to issue works to the public. Another is the right to rent or lend the work. Another the right to perform or show it in public, or to make adaptations of the work. So these are various things that only the person who owns the copyright on the work is allowed to do.
So what’s copyright infringement then?
Copyright infringement is when someone does one of those things without the consent of the copyright owners. For example, in the case of a work of art: if you are not the copyright owner and you make a copy of that work of art and issue it to the public or make it available online, then you've infringed the copyright in that work of art.
What happens if a work of art has not been directly replicated but instead heavily influenced something, as seems to be the case with Kendrick Lamar and SZA’s “All the Stars” video?
To prove copyright infringement, you have to show that a whole or a substantial part of the work has been copied or has been used by the alleged defendant. When it's 'slavish copy’ – ie: when a whole part has clearly been taken, for example a carbon copy or a photocopy – that's not complicated. But in the majority of copyright cases that's not the case; something has been taken that usually the defendant or the alleged will want to try and make some changes to in order to put a bit of distance between the original work and the new work.
Right, so they’re trying to cheat the system. How do you test if their new work has taken from an original?
In one sense it’s a quantitative test: when you physically compare the two things side by side, you see how much of A has been reproduced in B. But it's also a qualitative test – so you have to look at what is the valuable part of the original work. What parts has the original creator put a lot of work into? You probably have to take a central piece that the original author has put a lot of work into, and for that reason it's difficult to have a ‘set’ test in place. But broadly speaking the test is whether a substantial part of the area that blood, sweat and tears have gone into is the part that has been used. And if you get to a place where the reproduced work of art has not taken that, or it has changed it so much that the substantial part is no longer reproduced, then there is a new work of art and there's no infringement. But most cases will fall into that grey area where you have to look at the details to determine whether a substantial part has been copied over or not.
The letter from Viktor’s lawyer stated that the company previously asked to use her work twice and she declined because of the terms of the agreement. Does this fact strengthen her case?
I suppose to a certain extent it does – to prove copyright infringement, you have to prove first that you are the creator of the work in question, and you have to prove that copy has taken place. When it comes to proving that copy has taken place, one of the things you have to show is that the alleged copier actually had access to your work in the first place. So in this case, she can say, ‘I have proof and can show the defendant had access to my work – and what’s more I know they wanted to use it because they contacted me twice about it,’ and show that correspondence. Having said that, when it comes down to the substantive assessment of whether the work has been infringed, the judge or the hearing officer who is making that decision will look at it dispassionately. They won't allow themselves to become biased, and the ultimate decision regarding whether there was infringement or not will have to be backed up by reasoning as to what the judge believed a whole or a substantial part of the work has been taken.
In this case the artist has said she's "not seeking compensation as much as acknowledgement" and has also called it an "ethical issue". Do ethical issues often successfully translate into being legal issues?
In the sense that the copyright acts provides both for economic rights and moral rights, they do. The economic rights are all the rights I listed at the start (the right to copy work, etc) and are related to your right to make money from the product. Moral rights are different – they relate to the author herself or himself. One of the rights is the right to be identified as the author of the work. Another is the right to object to derogatory treatment of the work that would be harmful to the reputation of the author, so those are the kind of rights which involve ethical considerations in copyright disputes.
You can make claims for breaches of moral rights in the same way you can make claims about breaches of economic rights. Typically with cases of this kind, the person in Lina's position isn't seeking damages – she's not seeing the use of her work by this big movie and seeing dollar signs in her eyes. Often what small, independent designers want, when they find that they’ve been infringed by larger companies, is not to make money from the infringement but just to make it stop so they can be the exclusive person with control over the design. I think ethical considerations are often very personal to the artist, and the copyright act recognises that with the moral rights I just mentioned.
What's the usual outcome in these kind of cases?
First of all, I would say that the least likely outcome is that it goes all the way to litigation. Copyright infringement claims between a very big entity and a very small entity very rarely proceed all the way to court proceedings which are often costly, time-consuming and draining. Usually the outcome will be some kind of compromise or assessment agreement.
What do you think will happen in this case?
The main thing will be whether the Black Panther people acknowledge the copy or not – if they don't think it's a slavish copy and they argue that they've taken an idea not a work, and that ideas are not protected by copyright, then in all likelihood they will send a reply that says as much and just stonewall. If it's a much clearer infringement, they may either make a 'without prejudice offer' – which is a sort-of private offer with a nominal amount – in return for an undertaking from Lina that she won't sue them or say anything more about it. That's essentially them buying their way out. Or they might offer her some kind of acknowledgement that her work has been used, but that will only happen where there has been a clear infringement which is difficult for them to argue against.
Right. So a lot of things could happen! Now… for the fun shit: will you be going to see Black Panther ?
I certainly want to! I've seen it advertised but I'm not sure if it's out yet.
It comes out today. What's your favourite Kendrick Lamar song?
Oh – I don't have an answer to that question unfortunately!
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