A Brooklyn-based artist has filed a new lawsuit that raises the question of whether the mise-en-scène from one video production can be appropriated in another.
The plaintiff in the case is Maya Hayuk, who has had a strong career through two decades in the art world, with more than 75 gallery shows around the world. Her work has been published in books, magazines and websites. Hayuk also has licensed her art on apparel, consumer electronics and sports apparel.
She's suing RCA Records and Sony Music over a music video entitled "I Only Wanna Give It To You," by the up-and-coming singer Elle Varner.
Hayuk says that in 2010, she created an original work of art titled Sunshine.
The piece figured prominently in a music video, also titled "Sunshine," by recording artist Rye Rye and recent Super Bowl halftime star M.I.A. In the video, the two rap in front of Hayuk's mural.
Now, Hayuk says that Varner's own music video "includes numerous scenes that incorporate videographic reproductions of Hayuk's Sunshine."
Her lawsuit adds, "Hayuk's original artwork is featured prominently in the Video and adds greatly to its mise-en-scéne."
This isn't the first lawsuit by an artist against a singer over a music video. Last year, photographer David LaChapelle sued Rihanna over "S&M," and before the case was settled, a judge ruled that the "aesthetic appeal" of the music video could be seen by an ordinary observer as substantially similar to the way the photographer had composed his own work.
However, in this case, the artist isn't claiming that the video is a copy, but rather incorporates a copy.
In Hayuk's lawsuit, she says that Sony's video for Varner has been a financial success, viewed 2.7 million times on YouTube. Probably in anticipation of showing that Varner's video qualifies as commercial activity and thus is eligible for only diminished First Amendment protection, she adds that online video streams use "extensive pre-roll, pop-up, overlay, and other display advertising."
The lawsuit was filed on Friday by attorney Aaron Silverstein of Saunders & Silverstein in Massachusetts federal court and demands an injunction as well as statutory damages of up to $150,000 per infringement.
Here are the two videos in question: