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Wobble Up (feat. © infringement?) (Kate Spade Remix)

By Joshua Lahijani

"Wobble Up" by Chris Brown never broke into the Billboard Hot 100, despite featuring popular artists Nicki Minaj and G-Easy. (https://www.billboard.com/music/Chris-Brown/chart-history) Released on April 18th, it is a hip-hop single that is to feature on Brown's upcoming album "Indigo". Despite the lukewarm response to the song, the music video, directed by Arrad Rahgoshay (https://www.imdb.com/name/nm5742174/) and Chris Brown (https://www.imdb.com/name/nm2093097/), has been targeted by multiple artists for copyright infringement.

The video contains four controversial images/scenes (https://www.youtube.com/watch?v=odgvsMFSIo8):

1. A visual pun of beach bums (the artists) on a beach that is a bum;
2. a colorfully painted breast with a temperature knob displacing the nipple;
3. two lemons on a blue backdrop with a distinctive piercing on the right sitting flat on a surface;
4. an eggplant made from a lavender colored balloon on a grapefruit/peach colored backdrop; and
5. two grapefruits nested in a lace bra.

The video frames contain images that are similar to "concept" works by three artists:

1. A visual pun of beach bums (stick figures) on a beach that is a bum - concept work by Marius Sperlich (https://www.instagram.com/p/BmZG3dvn59T/);
2. a nude breast with a temperature knob displacing the nipple - concept work by Marius Sperlich (https://www.instagram.com/p/BpC3Z0snFSC/);
3. two lemons on a pink backdrop with a distinctive piercing on the right pointed upright on the surface - work by Tony Futura (https://www.instagram.com/p/BI3MkO2gR1E/);
4. an eggplant made from a lavender colored balloon on a pastel blue backdrop - work by Vanessa Mckeown (https://www.instagram.com/p/BxxbpplARU2/); and
5. two eggs nested in a lace bra - work by Vanessa Mckeown (https://www.instagram.com/p/BhCPvpyAZKV/).

In an Instagram post on May 21st, Sperlich stated:

Apparently my work got copied by the director who made the new . . . music video "Wobble Up" - without permission, without credit - along with works of other famous artists like @tonyfutura and @vanessamckeown #changeindustry For reference: A concept of @tonyfutura got copied, too. . . . Intellectual Property has to be protected at any cost! Now that the internet and social media proliferate content instantly. We need to make sure that the creative source is present from first launch. This unfortunately happens offers in the creative industry. Nowadays its very easy to copy things. For many the internet is just an open source of concepts, ideas and free content. Nobody cares about creation, originals and credit anymore. Especially if you are a young and an emerging artist....most cant afford a lawyer for a lawsuit. So most of them remain silent - We won't stay silent.

An Instagram post on May 21st by Futura stated:

So, apparently my work got copied by the director who made the new @chrisbrownofficial @nickiminaj @g_eazy music video "Wobble Up" - without permission, without credit - along with works of other famous artists like @mariussperlich and @vanessamckeown #changeindustry please tag, comment, repost and help us artists to get press on this. because credit is the only thing that lets people know about our work. credit saves creativity. please help us to spread awareness to all creative fields and the creative industry. #changeindustry

Turning away from the discussion of direct copying, this issue invokes a copyright concept that has been discussed over and over (and over) again, the idea-expression dichotomy. Copyrights protect the expression of an idea, and not the idea itself (see Mazer v. Stein). This scenario is reminiscent of another case, Bill Diodato Photogrpahy, LLC v. Kate Spade, LLC (2005). In Kate Spade, the plaintiff's photo was "of the bottom of a bathroom stall . . . [from] the opening underneath the door, one can see a woman's feet, astride a toilet, in stylish, colorful shoes, her underwear hanging above her ankles, and a handbag resting on the floor."

Diodato submitted the photograph to Kate Spade in January 2003 in promoting his "portfolio". Kate Spade denied seeing the photograph, but included in its November 2003 advertising campaign a photograph "of a woman's feet, astride a toilet, in stylish, colorful shoes, with a handbag on the floor." The court, after considering issues of evidence of actual copying and the doctrine of scenes a faire, dismissed the case, stating that the "significant elements of the [Plaintiff's photograph that] are similar to the Kate Spade Photograph are not protectable -- and that elements that are protectable are . . . de minimis."

Did the Rahgoshay and Brown video misappropriate the protected works of the artists beyond the de minimis or did they simply express their expression of an idea? If the artists file suit, a court may decide.

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This page contains a single entry from the blog posted on June 10, 2019 10:49 AM.

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