HC breaks copyright on coverart after being denied original

[DiapDealer]

It seems the author of the second book has issued a statement. I'm not sure it should exonerate HarperCollins, but at least the author behaved in a classy manner in response to the incident. I'd sure love to hear from the second artist.

http://www.lkrigel.com/2011/08/alex-flinn-has-class/

[rkomar]

Originally Posted by Hellmark

Now, I do believe that the cover on the HC book is a copy, because it has too many similar elements and themes. It would be like if I were to make a portrait of a rennaisance woman, up close, without a smile, with rolling hills as a back drop, and claim no similarities to the Mona Lisa. Also, if HC wasn't being shady, why pull the cover?

Frankly, most renaissance portraits look more alike to me than the two paintings brought up here. It's the details that differentiate each portrait, and not the elements and themes. I think you could produce a portrait of a woman with all the same elements of the Mona Lisa and not get into trouble if the portrait was of a different woman and the backdrop wasn't identical. However, if it's wrong to have similar elements and themes in two pictures, then 99% of portraits are wrong in that way. I'm sure many a portrait was commissioned with the instruction that it look like some other portrait that the patron fancied. I think that in this case, we have pretty much the same situation.

As for HC pulling the cover, they probably want to avoid the scenario abookreader brought up, where they look like hypocrites. Looking shady is just as bad as being shady in the public eye, without the perks.

[Daithi]

You don't have to make an "exact" copy for it to be a copyright violation. For example, you can't rewrite the Harry Potter books even if you change the names of the characters and use your own words. Likewise, HC can't say to a different artist, "repaint this cover but change a few details to make it your own."

[abookreader]

I really don't think the Mona Lisa or other Renaissance works are under any sort of copyright protection. The Mona Lisa is frequently copied and utilized for commercial works ... greeting cards etc.

Now painting a version yourself and selling it as a true Mona Lisa from Da Vinci would be forgery and fraud, but not a copyright violation.

[RichL]

Years ago there was a copyright fight over two photographs very much in the same vein as this two paintings. An advertising firm wanted to buy the rights to a photograph and the photographer didn't want to sell the rights so the ad firm went about recreating it with just enough differences (they thought) to circumvent the copyright laws. Several years of court battles later the original photographer won the case. In summery the copyright judge said that though the two photographs were measurably different the positioning of the subjects and the locations gave the 'same feel' to both photographs. If the photographer didn't have the money to fight the multi-year court battle guess who would have won.

As an OT addendum, the legality of using a photograph for any particular use and or at any particular time is a fascinating subject to read about. One of the most interesting areas is when a model release is required and when it isn't.

[Penforhire]

I don't see this as a copyright violation, just scummy behavior. To my eye there are enough differences between these images. But IANAL and all that.

[MrsJoseph]

I don't think that HC was willing to take the chance. "Look and Feel" does seem to be protected.

Did any read the article able Rihanna being sued by a photographer over her S&M video? The judge allowed this one to go to court.


From PDN

A federal court has refused to dismiss David LaChapelle's copyright claim against pop singer Rihanna over a music video with scenes allegedly copied from several of LaChapelle's images. The ruling, by the US District Court in New York City, means the photographer's claim can now go to trial.

LaChapelle filed suit in February, alleging that some scenes from the video for Rihanna's hit single called "S&M" are rip-offs of sadomasochistic images he has created and published over the years. According to LaChapelle's claim, Rihanna asked various directors to create a "LaChapelle-esque video" for "S&M," and provided a story board for the video actually included prints of some of LaChapelle's photographs.

In its pre-trial ruling, the court ruled that LaChapelle made a plausible claim for infringement because the video appeared to copy protectable elements of his images, according to the judge. (Protectable elements exclude the idea and subject matter, but include factors that contribute to the originality or expression of the subject: sets, wardrobe, lighting, camera angle, mood, etc.)

For instance, the court pointed out that the video's "Pink Room Scene" and LaChapelle's "Striped Face" photograph both feature women dominating men in a domestic scene. That subject is not protectable, the court noted, because "the subjects flow naturally from the chosen idea" of sadomasochism.

But the particular way that Rihanna's video portrayed the scenes--including the set, wardrobe, "generally frantic mood" and lighting--was "substantially similar" to LaChapelle images, even if all the details were not identical, the court concluded.

"Both works share the frantic and surreal mood of women dominating men in a hypersaturated, claustrophobic domestic space. Thus, I find that an ordinary observer may well overlook any differences and regard the aesthetic appeal of “Striped Face” and the “Pink Room Scene” as the same," Judge Shira A. Scheindlin wrote in her decision.

She reached the same conclusion after comparing other video scenes to particular images by LaChapelle.

The judge dismissed Rihanna's fair use defense out of hand, saying it was so misguided and "unavailing" that the pop singer failed to raise a fair use defense at all.

But Judge Scheindlin also dismissed other claims made by LaChapelle, including trade dress violation and unfair competition claims. Those claims were based on LaChapelle's contention that audiences would confuse Rihanna's S&M video with his work. But the court said LaChapelle was merely re-stating his copyright claims, without providing enough evidence to sustain his additional claims.

With the copyright claims cleared for trial, the judge scheduled a pre-trial conference for August 10.

Now it is up to Rihanna to decide whether it is worth the risk and expense to defend against the copyright claims in front of a jury--or try to settle with LaChapelle out of court.

She's also being sued by another photographer for the same video:

From here:

In once scene, Rihanna wears a big dress, up against the wall with huge plastic in front of her, with X’s all around.

German photographer Paulus believes that image was appropriated from his own photographic series, "Paperworld."

I think that - as different as this video looks from the photos - then HC was right to pull that cover ASAP. Looks like not a leg to stand on.

[Catlady]

The more I look at those two covers, the more I believe that although they are similar in look, they give off a different vibe.

In the first, my eye goes to the spider tattoo, the crisscross straps on the back of the dress, and the oddball hairdo. These are all elements that signal the story is not likely to be my taste--I think paranormal, steampunk, aliens, weirdness, even bondage. But the second cover is beautifully romantic--it looks like a love story with gothic elements or a tragic fairy tale; I would linger to read the description.

[cfrizz]

Originally Posted by Catlady

Anyone remember all the gothic romances from the sixties that showed a woman in flowing gown fleeing from a house with a single light in the window?

LOL! Phyllis A Whitney had a ton of those stories & I loved every one of them.

[MrsJoseph]

Originally Posted by cfrizz

LOL! Phyllis A Whitney had a ton of those stories & I loved every one of them.

But wouldn't those usually fall under "stock photo" and not "very specific artwork that someone told me that I can't have?"

[Giggleton]

Copyright was created by the book publishing industry.

[afa]

Maybe I'm in the minority here, but I don't see any similarity between the two. They are two completely different images. There isn't even a coincidental similarity.

One is of a woman caught in the act of adultery, and the other is of a post-apocalyptic world full of terror and despair.

[Hellmark]

Originally Posted by afa

Maybe I'm in the minority here, but I don't see any similarity between the two. They are two completely different images. There isn't even a coincidental similarity.

One is of a woman caught in the act of adultery, and the other is of a post-apocalyptic world full of terror and despair.

I hope that is sarcasm. I don't understand how you could get adultery out of either one. And seriously, no similarity in dress, pose, birds, etc?

[theducks]

IMHO the foreground is too similar. Changing a color, adding a Tat.
The blocking is similar: Way too close.
It is a Look and Feel, foul.

[Elfwreck]

The Passive Voice blog, by a former IP lawyer (not currently active, and he mentions that often) has a more detailed breakdown of the legal issues--the fact that Harper Collins tried to buy the original, and failed, is a strong point towards infringement. They didn't "just happen" to make a similar cover; they wanted *that* cover, and set about to re-create it. The author of the new cover is unhappy; she wasn't informed she was making a copy.

Currently, HC plans on using a different cover.