It’s a little strange that WWE superstar Randy Orton, Netflix’s romance “Bridgerton,” TikTok, a tattoo artist, Instagram, NFTs, and Andy Warhol’s portrait of Prince are all in the same law school textbook.
All of these unlikely creators and platforms are now involved in a legal battle that has reached the US Supreme Court. In a new media world that changes quickly, the lawsuit is about intellectual property, copyright infringement, and fair use.
“You stole my song/book/idea” has been the basis of so-called “copycat” lawsuits for decades. As the number of places to show art has grown, these court cases test the rights of fans, creators, and competitors to reinterpret other people’s intellectual property.
The question is how much you have to change something to make money and get credit for it, literally to make it your business. This is especially true in social media and new technology.
In a case that was the first of its kind, a jury in a federal court in Illinois ruled three weeks ago that a tattoo artist’s copyright was violated when a video game used a picture of her client, World Wrestling Entertainment star Randy Orton. Alexander has inked Orton’s arms all the way down to his wrists, from his shoulders.
She won, but she only got $3,750 because the court said that even though her copyright had been broken, her tattoos didn’t affect how much money the game made. Still, it set a standard for the future.
Aaron J. Moss, a lawyer in Hollywood who specializes in copyright issues, says that the decision makes people with tattoos less likely to be able to “to control the right to make or license realistic depictions of their own likenesses.”
This is because of the rise of remix culture. For most of the 20th century, mass content was made and spread by professionals “Moss told us. “People bought things.” Legal issues were not too hard. But most of the time, content is repackaged, remixed, or used in a different way.”
The art was made by Erin Hanson
These artists found out that AI was being trained with their work. Now, they are very angry.
Victor Wiener, a fine-art appraiser who works with Lloyd’s of London and testifies in court cases about the value of art, said, “It’s all new and it’s all a mess.” In the last few decades, the lines between professionals and amateurs, artists and imitators, and production and consumption have become more blurry. Wiener said that in such gray areas, “it can come down to what the judge or fact-finder thinks.”
Service for streaming Netflix settled a lawsuit over copyright with fans of their Regency romance “Bridgerton” who made a “Unofficial Bridgerton Musical” and worked on it on TikTok at the end of last month.
In January 2021, a month after the Netflix show came out, singer Abigail Barlow and musician Emily Bear worked together to make their own version of the hit show. In a more advanced form of fan fiction, the two women started writing and performing songs they had written, which often used lines from the show.
It was a huge hit on TikTok, in part because the two creators asked for feedback and participation, making it a crowd-sourced piece of art.
At first, Netflix was impressed and even let them record an album of songs. But when the people who made the show took it on the road and sold tickets, Netflix sued.
Shondra Rhimes, the show’s creator and producer, said in a statement that was released when the lawsuit was filed in July that what started as a fun celebration by [fans] on social media has turned into the clear taking of property rights.
Cases like this one depend on how much of someone else’s work is taken. This is called “fair use.” Or if it makes it harder for the original creator to make money. In the case of “Bridgerton,” neither side has said anything about how the suit was settled, but a performance of the musical at the Royal Albert Hall was canceled last month.
Misappropriation is especially common in the field of NFT art, which is still pretty new.
“Today, a 15-year-old can copy your work and spread it across the Internet like feral cat pee at no cost and with little effort. The intellectual capital of an artist can be appropriated on a massive, global scale unimaginable by the people who wrote copyright laws,”John Wolpert, who helped start the IBM blockchain and several other blockchain projects, said.
Also, the relatively new practice of exchanging art NFTs for cryptocurrency “has created a perverse new incentive to steal an artist’s work, claim it as your own, and charge people to buy it,” he said.
Hermes sued L.A. artist Mason Rothschild after he made 100 NFTs of Hermes Birkin bags wrapped in fake fur. This is one of several NFT lawsuits that have gone to court.
In January, Hermes filed a lawsuit in the Southern District of New York, claiming “rip off” and trademark infringement. They also asked for a quick summary judgment.
But in the past, courts have often gone out of their way to give artists room to criticize and make fun of things. Rebecca Tushnet, the artist’s lawyer and a Harvard Law professor who specializes in copyright and trademark law, has said that his “MetaBirkins” art project is basically protected because it talks about how consumerism affects the value of art.
The Central District of California made a decision in the copyright case Carlos Vila v. Deadly Doll last month. This case started on Instagram.
In the year 2020, the photographer took pictures of model Irina Shayk. She was wearing sweatpants that said “Deadly Doll” and had a big picture of a woman carrying a skull on the front. The photographer later gave permission for his model’s picture to be used again. Vila filed a lawsuit after Deadly Doll put a picture of him on their Instagram page. They sued back, saying that he was the one who broke the law. As lawyer Moss wrote in his Copyright Lately blog, the case is going on in California.
The most important case, on the other hand, has nothing to do with new media. It’s about an old photo of the late artist Prince that Andy Warhol changed and put in Vanity Fair. It is expected, though, to set a standard.
The US Supreme Court is currently hearing this important case about whether or not Warhol stole Lynn Goldsmith’s work to make his Prince silkscreens. The court will decide how and how much an artist or creator must change a work to make it their own. These rules will be just as interesting as the intellectual property itself.
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