Back in October, Canadian artist Samantha Ravndahl produced a step-by-step tutorial on how to create a “glam zombie” look using makeup and posted it to her Instagram and other social media outlets.
About a month later, Lil’ Kim announced cover for her new single “Dead Gal Walking” and, much to Ravndahl’s surprise, the cover was her image with only slight retouching.
That kicked off a flurry activity that saw Ravndahl try to get in touch with Lil’ Kim’s camp and resolve the issue but, after more than two months of trying, Ravndahl gave up and, earlier this week, filed suit against the singer, her agent and others involved.
On the surface, this looks to be a pretty straightforward case. If Ravndahl’s description of what happened is accurate, then the use is a definite infringement and, to put it modestly, an egregious one. But the actual lawsuit raises some issues, questions and concerns that should have every photographer paying attention as they could set the tone for how photographers are positioned in similar cases down the road.
Copyright Act, DMCA and VARA Oh My!
Reading the complaint, the bulk of the argument centers, as one would expect, around the traditional copyright violation. By taking the photo and using it as a cover for the single, Lil’ Kim’s camp made a variety of unauthorized, commercial copies of the work, posting it to various social media platforms and using it in promotional material.
While this is definitely an extreme example of copyright infringement, it’s also fairly straightforward. For all of the case’s egregiousness, the issues here are fairly mundane. If it is indeed Ravndahl’s photo and Lil’ Kim did not have a license for it, then it is an infringement – end of story.
However, the complaint also made a series of other arguments that are much less common and could play a big role in determining just how large of a lawsuit this becomes.
- Digital Millennium Copyright Act: Among its provisions, the Digital Millennium Copyright Act (DMCA) made it illegal to remove or alter Copyright Management Information (CMI) contained within a work. This includes author information, licensing data and so forth. Ravndahl’s alleges that Lil’ Kim’s camp violated the DMCA by removing her watermark from the image before using it
- Visual Artists Rights Act: The suit also alleges that the use of the photo violated Ravndahl’s rights under the Visual Artists Rights Act (VARA). VARA provided a limited implementation of moral rights to the U.S. copyright code, meaning that artists had the right to object to certain uses of the work, the right to be attributed for their work (or have attribution removed if they wished) and other rights beyond the scope of traditional copyright. This act only applies to visual artists, as per the name.
- Misappropriation of Likeness: Finally, since the photo was of Ravndahl herself, she is also seeking damages for misappropriation of likeness, meaning the misuse of her face and appearance for a commercial purpose.
In short, while this might seem to be a straightforward copyright infringement case, the details of the infringement, combined with the details of the claim, make it anything but and any photographer or visual artist should be paying close attention to it because of that.
A Difficult Climate
Last year, I spelled out the challenges photographers and artists face when dealing with infringement on the Internet.
The short version is that things are very bleak for photographers. Infringement is rampant but attention is sparse and enforcement is even more rare. The current climate is one where the work of photographers is often viewed as disposable, photos are routinely shared without attribution and images are rarely given any weight or significance.
Traditionally, these challenges have been limited to individuals, who aren’t the target market for photo or image licensing anyway. Increasingly though, the relaxed attitudes toward photo use have begun trickling up toward the commercial market but photographers have been also been hitting back.
The best example involved photographer Daniel Morel, who captured many of the first photographs taken of the Haiti earthquake only to have them used by the AFP and Getty Images without clearance from him. Though they claim they were duped by a third party who okayed the use of the photos, issues with getting the images retracted led a judge to determine them liable for copyright infringement and a jury to award Morel $1.2 million in damages for willful infringement.
But where Morel’s case involved eight images, Ravndahl’s case only involves one. This greatly limits the statutory damages that can be claimed and that, in turn, is a large part of why Ravndahl is taking so many different approaches.
While maximizing damages is a common legal tactic, one that helps both in the courtroom and during negotiations, it is especially critical in this case.
Simply put, the outcome of this case could have a tremendous impact on the climate artists, especially amateur artists, work in for years to come.
What’s At Stake
There are two reasons why this case is such an important one for visual artists to watch:
- The Legal Issues: By touching on so many legal issues, it could have a drastic impact on how CMI and moral rights are enforced moving forward. Though the issues appear fairly straightforward and to have been covered by prior case law (all in favor of Ravndahl), any ruling has the potential to change that.
- The Damages Issue: If a case as seemingly egregious as this does not result in a suitable damage award, it could change the risks involved with not licensing images and make it more appealing to infringe than license.
If Lil’ Kim and her team get off with little more than a slap on the wrist, it may be more appealing to “Ask forgiveness rather than seek permission” on many photo-related issues. After all, for every photographer who learns about the infringement, decides to take action and is able to, there are dozens who don’t. So, if egregious infringement isn’t at least fairly expensive, there’s little to discourage making it more common.
After all, the expense in licensing a work isn’t just the amount paid in a license fee. It’s the cost of finding who the rightsholder is and, if they say no, finding alternate works. While photographers can and should do all they can to make that process easier, given the way photos are spread on social media and the Web in general, there’s only so much that can be done at all.
In short, the cost of licensing a photo is rising, largely due to factors outside of artists’ control. If the costs of infringement falls, the entire balance of the licensing economy could be thrown out of whack.
In the end, the most likely outcome of this case, as with most legal disputes, is settlement. The infringement seems to be pretty clear and Lil’ Kim’s camp will have little to gain by fighting this one. They, almost certainly, will be motivated to settle.
However, that isn’t guaranteed given how they responded to the initial allegations and attempts to cooperate. But where they might not have realized the seriousness of the situation, their lawyers probably will now that the lawsuit is in hand.
It’s also likely that the terms of the settlement won’t be disclosed and, while that’s probably in both parties’ interest, it also means that the numbers won’t be there to deter others.
Still, if this case does make it to trial, there are a lot of legal issues that photographers should be paying attention to and, given the egregious nature of the infringement, reasons to hope for a fitting damages award.
Photographers already have it tough enough online. Fortunately, when it comes to the law, between CMI and VARA, they more tools and weapons that they can use against infringers than any other type of creator. (Note: Though CMI does apply to any type of work, it’s most easily affixed and applied to visual media.) However, if those tools don’t have any teeth, they won’t do any good at helping photographers retain control and effectively exploit their work so they can create more.
That, in turn, is what copyright is supposed to be about.