Photographer David LaChapelle has survived the first hurdle in his lawsuit claiming pop star Rihanna copied his photographs to create the music video "S&M."
Although some allegations against the singer have been dismissed, a New York federal judge is allowing LaChapelle's main claim for copyright infringement to proceed to trial.
LaChapelle sued the singer, Def Jam Records and Black Dog Films in February with allegations that eight scenes in "S&M" were directly lifted from his work. The video portrays Rihanna's supposedly sadomasochist relationship with the press.
Upon review, New York Judge Shira Scheindlin finds that LaChapelle has successfully alleged facts to support a charge of actual copying. The plaintiff had pointed out that storyboards for the music video contained his photographs and that the two artists had collaborated with each other previously.
One of the big issues in this pre-trial judgment is whether LaChapelle's work contains elements protectible by copyright.
The judge finds that the common theme of S&M and elements like leather-or latex-clad women, whips, ball gags, people in restraints, men on leashes, and other aggressive, sexually-charged motifs-are NOT protectible. However, his selection and orchestration of props and the way he controlled "angles, poses and lighting" do rise to elements that can be copyrighted, according to the judge.
Next, the judge looks to see whether the photographs and the music video in question are "substantially similar,"
"I find that an ordinary observer may well overlook any differences and regard the aesthetic appeal...as the same," writes the judge.
Looking at fair use, Judge Scheindlin says there are not enough facts to meet a defense against copyright infringement at this time. She adds that Rihanna's fair use argument is "misguided"-the singer didn't need to use copyrighted works to comment on her treatment by the media.
The judge tossed allegations of trade dress infringement, unfair competition and unjust enrichment as being insufficiently supported by the claims made. But overall, LaChapelle has scored a big win here.