David LaChappelle, a photographer, sued Rihanna over a music video Mr. LaChappelle claims violates his copyrights in a series of photos featuring bondage and sado masochism. Techdirt has discussed the case, both when it was first filed and after a motion to dismiss was denied, and has pointed out that LaChappelle’s claims should run afoul of the idea/expression dichotomy. In short, copyright does not (and cannot) protect an idea but, rather, protects the expression of that idea.
In denying the motion to dismiss, Judge Scheindlin disagrees with both Techdirt and Rihanna’s lawyers. The judges decision hangs on which elements in LaChappelle’s photos are protectable by copyright, and which ones are not. Before dissecting the order denying Rihanna’s motion to dismiss, however, it’s important to first provide a brief lesson on the laws of civil procedure.
This case isn’t over—this is a preliminary ruling
Lawsuits go through three stages: (1) pleadings, (2) discovery, and (3) trial. Each stage has a method lawyers can use to try and end the case. Motions to dismiss can be filed during the pleading stage, motions for summary judgment in the discovery stage, and trial can end with a verdict from judge or jury. The motion to dismiss in Rihanna’s case is part of the first stage, so there is still a lot more to be done in this case.
About Rule 12(b)(6)—Failure to state a claim upon which relief can be granted
Motions to dismiss during the pleading stage are often filed under Federal Civil Procedure Rule 12(b)(6) for “failing to state a claim upon which relief can be granted.” (You can also ask for a judgment on the pleadings, or 12(c) motion.) Judge Scheindlin denied Rihanna’s 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted.
Judge Scheindlin’s ruling only discusses whether Mr. LaChappelle has pleaded factual allegations sufficient to sustain a legal claim upon which the court can grant relief. To do this, Judge Scheindlin can only take into account the facts pleaded by both parties in their Complaint and Answer. These facts must meet a plausibility standard where, if the facts can be proven true by evidence submitted later during the lawsuit, Mr. LaChappelle has a valid claim for copyright infringement.
This standard makes motions to dismiss difficult to win for defendants. Rule 12(b)(6) is intended to dispose of lawsuits not based on the law, and therefore not appropriately before the court. Rule 12(b)(6) does not measure the merit of the evidence or claims, only if they were pleaded in such a way as to provide a valid remedy.
Ideas, as a matter of law, cannot be copyrighted and therefore claims for infringing ideas should be dismissed under Rule 12(b)(6)
Techdirt’s argument, and the argument of Rihanna’s defense lawyers, is that LaChappelle’s copying claims relate to the ideas behind the photos, but not for any protectable elements of expression in the photos. This would be a failure to state a claim upon which relief can be granted because you can’t protect your ideas, only the way you express those ideas.
Judge Scheindlin, however, rejected this argument. She focused on the ways in which the images were similar:
hot-pink and white striped walls; two single-hung windows in the middle of the back wall; windows with glossy hot-pink casings and interior framework, with opaque panes exhibiting a half-vector pattern of stripes against a yellow background; hot=pink baseboards; a hot-pink couch under the windows; women wearing frizzy red wigs; a woman posed on top of a piece of furniture; black tape wrapped around a man; and a generally frantic mood.1
Judge Scheindlin also focused on how LaChappelle composed his images. LaChappelle’s composition, through design and orchestration of their scenes, lent greater originality and, thus, greater protection to the works in the eyes of Judge Scheindlin. In short, Judge Scheindlin found that LaChappelle sufficiently pleaded facts indicating that what Rihanna’s video copied from his photos were not just the ideas behind the photos, but protectable elements of the photos. Scheindlin relied on the decision in Mannion v. Coors Brewing2 to support her decision.
Thin versus Thick Copyright Protection
This comes back to the idea of thin versus thick copyright protection. I’ve discussed this before in my post on how Auto-Tune the News made me look at the DMCA and copyright laws again. Some copyrighted works possess great creativity and originality, such as novels and paintings. Not only are the layout of elements in these works particular expressions of ideas, the representation of these elements are expressions as well. These works have thick copyright protection—they have more protectable copyright elements, and therefore have stronger copyright protection.
Some works possess little creativity and originality. The famous example, from Feist v. Rural Telecommunications, are phone books—they are collections of facts (phone numbers tied to names—laid out in an alphabetical manner. Facts, like ideas, cannot be copyrighted. Further, an alphabetical layout of these facts is not very original, and therefore afforded limited protection. The Supreme Court in Feist indicated that only mechanical copying of the phone book at issue would constitute infringement. Copying the factual data and the common alphabetical layout of the data was rejected as copyright infringement, however. These types of works have thin copyright protection—they have fewer protectable copyright elements, and therefore have weaker copyright protection.
Judge Scheindlin effectively found that LaChappelle’s photos deserved more than thin copyright protection as a matter of law. Her opinion found that there are copyrightable elements in the photos that might be substantially similar to elements in the Rihanna video. While Scheindlin did not go so far as to say LaChappelle’s photos deserve the same level of protection as a novel, her willingness to go as far as she did, and the willingness of courts before her to do the same, raise questions about the idea/expression dichotomy and whether it’s still legally effective.
What is the idea/expression dichotomy?
I touched on this earlier in the post. A common refrain in copyright law is that copyright does not protect ideas, it protects the expression of an idea. This is the idea/expression dichotomy—in copyright law, ideas are contrasted with expression. Thus, copyright views ideas and expressions as being entirely different for the purposes of determining whether something is copyrightable.
Why the idea/expression dichotomy is troublesome
The effectiveness of this approach is questionable. Judge Scheindlin’s ruling on Rihanna’s motion to dismiss illustrates the problems with the idea/expression dichotomy—it is often difficult, if not impossible, to draw a bright line around whether the elements of a work are ideas (and therefore not copyrightable) or expressions (and therefore are copyrightable). Expression, after all, depends on the existence of an idea.
So while a dichotomy requires two things to contrast with one another, to be different from each other, ideas and expressions don’t really fit the ‘dichotomy’ mold. This leads to tortured legal exercises, such as those undertaken by Judge Scheindlen, to determine where the idea ends and the expression of it begins. In the end, the idea/expression dichotomy that is often written about, offered up to courts as a legal doctrine, and held out as defining aspect of copyright, is anything but definite, anything but defining, anything but clear.
One court might find a work to possess thin copyright protection because most of the elements are non-copyrightable as ideas, whereas another court might find the exact same work possesses thicker copyright because the second court finds protectable expressions in the work.
Photographs are especially difficult under the idea/expression dichotomy
Facts cannot be copyrighted because they are ideas stripped of any original expression. For example, if it is a fact that I have one orange then there are limited ways I can express that fact. The underlying fact is the idea that I have one orange. I might select a method for communicating this fact that is original and expressive, and this method might be copyrightable. Nevertheless, another person could take the same fact (that I have one orange) and choose to represent it in another way. I cannot stop this with copyright law.
This works well enough with data. Feist‘s phone book ruling is an example of relative clarity compared to the otherwise difficult analysis of idea versus expression. It works less well with photographs, however.
A photograph is a mechanical representation of facts. This is unlike a painting, which is a non-mechanical representation of something—be it facts, such as an attempt to paint an outdoor scene or create a portrait of someone, or imagination in the form of how the artist sees the world, such as the Vincent van Gogh’s Starry Night painting. Paintings, therefore, are pure expressions of ideas or facts. Photographs, however, are mechanical expressions of facts.
So can a photograph be copyrighted, even though it is a mechanical representation of facts? Yes.
Remember the Feist case—if the defendant in Feist had photocopied their competitor’s phone book pages then copyright infringement had occurred. They didn’t photocopy the pages, however—they copied the factual data and arranged it themselves. So even thin copyright allows some copyright protection, even if its limited.
A photograph deserves at least thin copyright protection. It is an expression of facts, even if it is a mechanical representation. Originality in the expression exists despite its mechanical origins—the angle, lighting, focus, and framing of the photo are controllable by the photographer. This allows a photograph to be original from another.
But how much should this expression in a photograph be protected? Allowing the angle at which a photo is taken to be copyrighted would lead to the undesired result that others would not be able to take photographs with that same angle. This rightfully seems absurd.
Nevertheless, courts try and pick out the elements of copyright that might be protected in a photograph. The angle, the color, the organization of a scene, where do the facts of a scene—the ideas—stop and where do the expressions begin? Moreover, to what extent can these expressions be protected?
Photographs shouldn’t be granted thick copyright protections because this leads to decisions where facts and ideas end up being copyrighted
Copyright protects expressions, not ideas or facts. This was stated at the beginning of this post. Copyright grants a monopoly over the copying and distribution of a work. The very power of this monopoly requires that it be limited to original expressions of ideas, but not to the ideas themselves.
Photographs, however, create problems for copyright law when it comes to drawing the line between the ideas represented (the facts) and the expression. This renders the idea/expression dichotomy problematic for photographs.
A photograph must possess a modicum of original expression in order for it to be capable of obtaining copyright protection. Nevertheless, a photographic is a mechanical representation of facts, no matter how creative the lighting or angle or scene composition might be. This leaves judges, like Scheindlen, attempting to graft expression onto the ideas to justify copyright protection.
This is unnecessary. There is no need to address the originality of a photograph for the purpose of a photograph being copyrightable. Nothing in copyright indicates its protections should expand further than this. Indeed, the downsides of doing so are clear.
If I take a photo of the Statue of Liberty at a unique angle and with interesting lighting, might this grant me the ability to sue others who emulate my photo? The strained rationalizations of the courts, as echoed in Judge Scheindlen’s opinion on the motion to dismiss in Rihanna’s case, make this seem less absurd.
What if I later seek to emulate a famous photograph of a famous person, but do so with a not-so-famous relative? Would I be liable in this case? Once again, the tortured reasoning of the 2nd Circuit (and other) courts as echoed in Judge Scheindlen’s opinion makes this not so ridiculous.
Creating a bright-line rule—photographs should only receive thin copyright protections, and nothing more
Photographs are mechanical representations of fact. Anyone who has ever taken photography seriously understands that these mechanical representations take a lot of work, effort, and result from each individual photographer’s expression of the scene being shot. Further, any commercial photographer will readily tell you of the importance of setting up a scene—be it in a studio, outdoors, or just knowing how to be in the right place at the right time.
But extending copyright protection beyond the mechanical copying of a photograph (i.e., scanning it and sending it to all your friends) is extending copyrights in photographs too far. The expression of a photograph cannot be separated from its factual reproduction of actual events. Attempting to do so leads to absurd results.
Therefore, a bright-line rule should reserve copyright protection in photographs only for the reproduction of those photographs. Copyright protection should not extend to the elements within the photographs themselves—doing so results in copyrighting facts, which is beyond the scope of copyright law.
This is not as radical as it sounds. Sound recording copyrights are similarly thin. I can record my own version of, say, one of Rihanna’s songs and the owner of the sound recording copyright cannot sue me for copyright infringement. (The owner of the work’s composition and performance copyrights, however, could.)
It is time for a bright-line rule; it is time for the copyright nonsense in the 2nd Circuit (in regards to photographs) to end.
- Opinion and Order on Defendant’s Motion to Dismiss, LaChappelle v. Rihanna, Page 21 (7/20/2011). [↩]
- Mannion v. Coors Brewing Co., 377 F.Supp.2d 444 (S.D.N.Y. 2006). [↩]