Contested Images: Copyright Law and the Use of Visual Art in Music Videos

November 12, 2023

Image credit: Ariana Grande, “God Is A Woman (Official Video)” at 1:09.

By Jiasi Liu

Introduction

In March 2019, Ariana Grande settled a lawsuit for her “God is a Woman” music video. The suit was filed by the artist Vladimir Kush, who alleged that the video featured an image of his painting, “The Candle,” without his permission, thus infringing his copyright in the work. According to Kush, Grande’s production team had forged a replica that was “strikingly similar” to “The Candle:” the use of “the same color palette, the same background of a cloudy sky, the same ring effect of the clouds around the flame, the same light beams radiating from the flame, and the same color candle, light fading to dark” were all formal qualities cited in the artist’s original complaint evidentiating the act of copying.^{^[1]}

Image credit: Kendrick Lamar & SZA, “All of the Stars (Official Video)” at 3:01.

The suit also named the music video director, Dave Meyers, and his production company, Freenjoy, Inc. as co-defendants. This was not the company’s first encounter with copyright issues. In February 2018, Freenjoy had been accused of copyright infringement for their production of Kendrick Lamar and SZA’s “All the Stars” music video from the Black Panther movie soundtrack. In that suit, the artist Lina Iris Viktor alleged she had been contacted by Marvel on multiple occasions about using her artwork in the Black Panther film, but that she refused the offer.^{^[2]} Nevertheless, an unauthorized imitation of her work, “Constellations,” seemed to have found its way into the music video.

Do musicians need permission to use visual art works in their videos?

Both cases involve artists dispossessed of the right to profit from the reproduction of their work because their images were used without their consent. Was this justified?

When the music video emerged in the 1980s as a novel method for communicating music to the public, it was hailed as a new medium of representative art. It was said that the music video, in its simultaneous presentation of music and images “seek[s] to create indissoluble associations of song and visuals.”^{^[3]} Though constituted of a multitude of artistic components, its end-product impresses upon the viewer-listener as a wholly new work: “it may be physically possible to separate the soundtrack from the visual track, but it may be impossible to separate the associations between the two already formed in an audience’s mind.”^{^[4]}

While the music video––as an illustrated musical performance––may stand as a work of art in its own right, a musician’s appropriation of a work of visual art is ultimately no different in the musical context than in any other. That a music video is an art form in and of itself does not grant their authors an exception to the most fundamental rule of modern intellectual property regimes: that artists are entitled to the fruits of their creative labor. Legally, this entitlement is secured through a bundle of rights in the work that can be bought and sold on the market. Licenses, for example, grant its holders legal permission to use the work in a particular way. By not purchasing any such rights in the work, Grande, Lamar, and their production company precluded Kush and Viktor from being compensated for their labor. As such, their use of the images was an act of theft.

Getting clearance for visual artworks displayed on screen

Under the Copyright Act, a music video is considered a “motion picture,” which the Act defines as “audiovisual works consisting of a series of related images, which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.”^{^[5]} The use of images in such productions must follow a clearance process that is not without complications. Displaying the works of famous masters is particularly onerous, in part because their recognizability drives up the cost of their display, and requires negotiating permissions with multiple parties, including the artist’s estate and museums. Some production companies have even devoted entire legal departments to this endeavor.

To circumvent this convoluted process, production companies have sometimes turned to hiring local artists to create a work that merely evokes the masterpiece in order to avoid any accusations of copying.^{^[6]} Even where images are not deployed as a reference to a particular work or style and serve purely aesthetic or compositional functions, production companies may still seek to thwart the clearance process by hiring someone to imitate existing, lesser known artworks. This can happen when the artist declines a request for their work to be featured, as was the case with Viktor, or where the musician or company simply does not wish to pay the fees.

The ‘fair use’ exception as a defense to copyright infringement?

According to the legal philosopher Jeremy Waldron, our problem with copying stems from the idea that “all use of an author’s work by another without his permission is putatively dishonest and larcenous.”^{^[7]} The only exception to this rule is the doctrine of fair use, which “represents a strictly limited departure from that background prohibition on stealing, a departure justified purely on the basis of some overriding social interest.”^{^[8]} Though the suits did not go to trial, had the parties gone to court, the defendants could have pleaded this defense to exonerate themselves of liability.

Prior to invoking this defense, two elements must first be established. First, the works in question––here, the paintings––must have been copyrightable material. Second, copying must indeed have occurred. The first step is a question of fact and would likely not have been at issue. The validity of a work’s copyright can easily be proven by copyright registration, though this is not a requirement.^{^[9]} The second step concerning whether copying did actually occur is a bit more complicated. The most common articulation of this requirement is the “substantial similarity” test, which compares the alleged copy and original and asks “whether the average lay observer would have recognized the alleged copy as having been appropriated.”^{^[10]} In the case of the allegations by Viktor, the defendants would have had a harder time disproving their copying given that they were clearly aware of the existence of her work and had even expressed a desire for its use in the video. The allegations brought by Krush, however, are less clear-cut with respect to substantial similarity, and would involve investigating whether Freenjoy had knowledge of “The Candle,” as well as a visual comparison of the works.

If these two elements are proven, the defendants could invoke a fair use defense. Fair use is an “affirmative defense to infringement” that carves out an exception in the author’s bundle of rights. The doctrine has its origins as a common law principle but was incorporated into the Copyright Act of 1976.

The fair use defense involves a consideration of four factors: (1) the purpose and character of use, (2) the nature of the work, (3) the amount that was copied, and (4) the effect on the market value of the original. Case law has demonstrated the extent to which the first factor bears on the entire fair use analysis. Under this factor, the test is “whether the new work merely ‘supersede[s] the objects’ of the original creation…or instead adds something new, with a further purpose or different character.”^{^[11]} Two points are worth clarifying here. First, the distinction between commercial and non-profit use is relevant, though not determinative.^{^[12]} Second, that a copy will “add something new” does not necessarily “render such uses fair”––it is the very character and nature of the secondary work that must surpass that of the original.^{^[13]}

The Act lists some general purposes acceptable under the fair use defense, such as “criticism, comment, news reporting, teaching, … scholarship, and research.”^{^[14]} Though the list is not exhaustive, it reflects examples that use the original work in a ‘transformative’ way under the first factor of the fair use test. In AWF v Goldsmith, the US Supreme Court clarified that not all works which add “new expression, meaning, or message”^{^[15]} will be considered ‘transformative’ by the law, since this would conflict with the copyright holder’s “exclusive right to prepare derivative works,” effectively rendering it useless. In the language of the Court, whether a work is ‘transformative’ hinges on its distinctive purpose: “a use that has a distinct purpose is justified because it furthers the goal of copyright, namely, to promote the progress of science and the arts, without diminishing the incentive to create.”^{^[16]}

In the present cases, it is highly unlikely that the defendants’ use of the images would have been found to be fair use under this criteria. Though the music videos do indeed produce something new and obviously different from the original painting, they would not be viewed by the courts as possessing a distinct purpose or character, especially when considering their commercial quality as a marketing tool in the music industry.^{^[17]}

Conclusion

Copyright cases boil down to the tension between individual rights and social interests. The logic of the fair use test seems to speak to this central tension embedded within copyright regimes. Where the violation of an artist’s individual right may further some greater public purpose, copyright infringement will be allowed. Criticism is one such purpose because it contributes to public debate and discussion. The justification for education, parody, and research all fall within this same line of reasoning. Though the music videos incorporated the contested images to create something new and in a different medium, under the current organization of the market for artistic goods and the legal incentive structures in place to ensure the proper functioning of this market, it is hard to substantiate why musicians and production companies appropriating an image without paying the price for its display are deserving of a fair use exception.

Sources:

Claudia Rosenbaum, Ariana Grande Settles “God is a Woman” Video Copyright Lawsuit, Billboard (Aug. 20, 2019), https://www.billboard.com/pro/ariana-grande-god-is-a-woman-video-lawsuit-settled/. ↑
Id. ↑
Id. ↑
Robert G. Martin, Music Video Copyright Protection: Implications for the Music Industry, 32 UCLA L. REV. 396, 426 (1984). ↑
17 U.S.C. § 101 (1976). See also Martin, supra note 4 at 401. ↑
Karen Chernick, How Artwork Gets Into Movies, Artsy (Mar. 2, 2018), https://www.artsy.net/article/artsy-editorial-artwork-movies. ↑
Jeremy Waldron, From Authors to Copiers: Individual Rights and Social Values in Intellectual Property, 68 CHI.-KENT L. REV. 841, 860 (1993). ↑
Id. ↑
Steven Shonack, Postmodern Piracy: How Copyright Law Constrains Contemporary Art, 14
LOY. L.A. ENT. L.J. 281, 300 (1994). ↑
Id. at 305. ↑
Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 143 U.S. at 1262 (2023) (hereinafter AWF) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)). ↑
AWF, 143 U.S. at 1263. ↑
Id. at 1262. ↑
Campbell, 510 U.S. at 577-578 (quoting § 101). ↑
Id. at 1264. ↑
Id. at 1263. ↑
Martin, supra note 4 at 406. ↑