It’s weird when wrestling superstar Randy Orton, Netflix romance “Bridgerton,” TikTok, a tattoo artist, Instagram, NFT, and Andy Warhol’s portrait of Prince all appear in the same law school textbook.
A series of hot-button lawsuits has tied all of these unlikely creators and platforms together in a lawsuit that goes all the way to the US Supreme Court. with intellectual property, copyright infringement, and fair use issues in a rapidly changing new media landscape.
For decades, so called “copycat” lawsuits boiled down to ‘you stole my song/book/idea’. Now that the number of platforms to showcase art content has multiplied, these court cases are testing the rights of fans, creators, and rivals to reinterpret other people’s intellectual property.
The problem, particularly in social media or new technology, is exactly how much you have to transform something to turn a profit and get credit for it, literally, to make it your business.
Three weeks ago, in a first-of-its-kind case, a jury in federal court in Illinois ruled that tattoo artist Catherine Alexander’s copyright was violated when an image of her client, the World Wrestling star, was shown in a video. Entertainment Randy Orton. play. Alexander has tattooed Orton’s arms from the shoulders to the wrists.
He won, but not much: $3,750, because the court ruled that, although his copyright had been violated, his tattoos did not affect the winnings from the game. However, he set a precedent.
The ruling calls into question the ability of people with tattoos “to control the right to make or license realistic representations of their own likenesses,” said Aaron J. Moss, a Hollywood trial attorney specializing in copyright matters.
Blame it on the rise of remix culture. For most of the 20th century, mass content was created and distributed by professionals,” Moss said. “Individuals were consumers. The legal matters were quite simple. But now, most of the time, the content is repurposed, remixed, or repackaged.”
“Everything is new and everything is a mess,” said Victor Wiener, a fine art appraiser who is a consultant to Lloyd’s of London and serves as an expert witness in art appraisal court cases. In recent decades, the distinctions between professionals and amateurs, artists and imitators, and between production and consumption have blurred. In such gray areas, Wiener said, “it can depend on who the judge believes, or who judges the facts.”
Streaming service Netflix late last month settled a copyright lawsuit against fans of its Regency romance “Bridgerton” who wrote and staged an “Unofficial Bridgerton Musical” on TikTok.
In January 2021, a month after the Netflix show premiered, singer Abigail Barlow teamed up with musician Emily Bear to create her own take on the hit series. In an enhanced version of fan fiction, the two women began writing and performing songs they had written, often using exact dialogue from the series.
It was a huge hit on TikTok, in part because the duo invited feedback and participation, making it a work of art of public origin.
At first, Netflix applauded the effort and even approved the recording of an album of songs. But when the creators took their show on tour and sold tickets, Netflix sued them.
Producer and series creator Shondra Rhimes, in a statement released when the lawsuit was filed in July, said “what started out as a fun celebration of [fans] on social media it has become the blatant takeover of intellectual property.”
Cases like this revolve around “fair use,” issues like how much of another work someone appropriates. Or if it dents the original creator’s ability to make a profit. In the “Bridgerton” case, neither side has commented on the resolution of the lawsuit, but a planned performance of the musical at the Royal Albert Hall scheduled for last month has been cancelled.
Uncontrolled misappropriation is particularly common in the field of relatively new NFT art.
“Today, a 15-year-old can copy your work and spread it around the Internet like feral cat urine at no cost and with little effort. An artist’s intellectual capital can be appropriated on a massive global scale unimaginable by the people who wrote copyright law,” said John Wolpert, co-founder of IBM’s blockchain and several blockchain projects.
And the relatively new phenomenon of exchanging art NFTs for cryptocurrencies “has created a perverse new incentive to misappropriate an artist’s work and claim it as one’s own and charge people to buy it,” he added.
In one of several NFT lawsuits to go to court, fashion giant Hermes sued Los Angeles artist Mason Rothschild after he created 100 NFTs that featured Hermes Birkin bags wrapped in faux fur.
Hermes filed a lawsuit in January in New York’s Southern District court for trademark infringement and damage to goodwill, not mentioning “fraud,” and Hermes requested a speedy summary judgment.
But in the past, the courts have often gone to great lengths to give an artist leeway in criticism and parody. Rebecca Tushnet, a Harvard law professor and copyright and trademark expert who represents the artist, has argued that her “MetaBirkins” art project is essentially protected, as it comments on the relationship between consumerism and the value of art.
Last month, the Central District of California court ruled on a copyright lawsuit that arose through Instagram: Carlos Vila v. DeadlyDoll.
In 2020, the photographer had taken a picture of model Irina Shayk. She was wearing sweatpants from the Deadly Doll fashion company that featured a large illustration of a woman wearing a skull. The photographer later released her image of the model for reproduction. Deadly Doll posted Vila’s photo on her Instagram account and sued. They countersued, arguing that he was the infringer. The lawsuit, detailed by litigant Moss on his blog Copyright Lately, is moving forward in California.
Perhaps the most important case has nothing to do with new media: It concerns Andy Warhol’s doctored photograph of the late artist Prince that appeared in Vanity Fair magazine years ago. But it is expected to set a precedent.
Right now, the US Supreme Court is hearing this landmark case about Warhol’s alleged misappropriation of photographer Lynn Goldsmith’s work in his silkscreens of Prince. The court is ready to determine how and how much an artist or creator must transform a work to make it their own – guidelines that are sure to create as much of a stir as intellectual property itself.