When does inspiration become copyright infringement? Kush v. Grande

A copyright is a set of exclusive rights granted to the creator of a new artistic expression. In the United States an artist is granted a copyright when the artist fixes their work in a tangible medium. This means when a painter paints a picture, a photographer takes a picture or a singer records a song they are granted a copyright to their work. A copyright gives an artist the exclusive right to reproduce, distribute, perform, display, transmit, and make derivative works based on the original work. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.

An important aspect of copyright law is that a copyright protects an artist’s expression of an idea and not the underlying idea. The public policy behind this aspect of copyright law is that artists frequently draw inspiration from other artists, to grant a copyright owner the exclusive right to an idea embodied in a copyrighted work would have a chilling effect on creativity. This means that an artist that paints a picture of a tree has a copyright on their painting, but other artists are free to create their own painting of a tree.

When a copyrighted work is reproduced it is trivial to prove copyright infringement, a plaintiff must show he or she owns a valid copyright, the defendant actually copied the work. When two works are similar, but not identical, it is more difficult to prove copyright infringement. Evidence of direct copying rarely exists so a plaintiff must show that a defendant had access to the copyrighted work and that the degree of similarity between the two works is so striking or substantial that the similarity could only have been caused by copying, and not, through coincidence, independent creation, or a prior common source.

VLADIMIR KUSH v. ARIANA GRANDE-BUTERA, 19-cv-00186 (D.C.NV 2019) is a case which will require the plaintiff to demonstrate that there is a striking similarity between their work and the defendants work. The plaintiff in this case is an artist who created a painting of a candle. The painting features a female figure as the wick of the candle, surrounded by a flame, with a cloud filled sky as the background. The painting is available on the Plaintiff’s website. The plaintiff’s painting is reproduced above on the left.

The defendant in this case is Ariana Grande a world renowned singer. The defendant created a music video to promote her song God is a Woman. In the music video there are various scenes of Ms.Grande depicted in altered versions of artwork such as Michelangelo’s painting The Creation of Adam. One of the scenarios depicted, which appears in three different portions of the music video, is Ms. Grande dancing inside the flame of a candle. A frame from the music video is reproduced above on the right.

The plaintiff believes Ms. Grande’s candle flame scene infringes on the plaintiff’s copyright. The plaintiff contends that, while there are many different ways to depict a silhouette of a woman as the wick of a candle, the defendant’s music video is strikingly similar to Plaintiff’s copyrighted work. Specifically, Defendants chose to use 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. The area around the feet of the woman/wick is also bright light.

The plaintiff is alleging that the defendant could access the copyrighted work though the internet and that there is a striking similarity between the copyrighted work and the allegedly infringing work. It will be up to a judge or jury to determine whether the two works are strikingly similar.

If you have questions or comments for the authors of this blog please email us at: admin@uspatentlaw.cn