Everybody Sues in Hollywood

September 30, 2003 9:14 AM

Madonna's being sued for stealing images from Guy Boudin's photography and using them in her Hollywood video. Here are side by sides. When does imitation/homage become theft? And who gets to decide? Should she have been sued for using this image in her vogue video?
posted by archimago (86 comments total)

I don't remember the name of the photograph she is using for the second image, but I know it's another theft/homage. Anyone?
posted by archimago at 9:16 AM on September 30, 2003

NSFW

Fer crying out loud, Archimago...
posted by silusGROK at 9:22 AM on September 30, 2003

In a famous case on this topic, Ford made a TV commercial with a soundtrack of an unfamous singer singing unmistakably in the style of Bette Midler.
Midler sued and won (pretty easily, I might add).
So if you knock off someone's distinctive style of work in order to avoid paying them...
yer fux0red.
posted by Fupped Duck at 9:22 AM on September 30, 2003

Considering the huge stink she made recently over people downloading her music, I hope that she gets her ass sued off.
posted by MrBaliHai at 9:27 AM on September 30, 2003

Oh, the irony.
posted by Outlawyr at 9:30 AM on September 30, 2003

Why sue Madonna and not the director of the video? I would think the visual style of the video is more his work than hers...
posted by PenDevil at 9:34 AM on September 30, 2003

Why, that's blaintaint copyright theft! That *BITCH* is taking money away from the artist!

What the fuck does she think she's doing?
posted by insomnia_lj at 9:38 AM on September 30, 2003

what about j lo's latest video where she does a splashdance ripoff nearly scene by scene? i think she got permission to do that though.
posted by suprfli at 9:40 AM on September 30, 2003

PenDevil - a few reasons:

1) The director, while he/she may stand to make good money, doesn't stand to benefit nearly as much financially as Madonna does.

2) Madonna, as the artist who benefits, holds a certain degree of responsibility for approving what she uses to promote herself. You could say it's the artist's label's responsibility - but Madonna owns Maverick Records, which I believe is the same label that publishes her stuff (I don't see why it wouldn't be.. wouldn't make sense)...

3) Madonna participated in the creation of the videos, so she's at the very least just as eligible as anyone else.

4) Suing Madonna makes more sense from a public relations standpoint, too... She's a bigger fish to tackle, has more money to lose, owns the label that publishes the music/video/etc, and is a dream for RIAA haters everywhere who want her to be exposed as a hypocrite...
posted by twiggy at 9:40 AM on September 30, 2003

A few years back Tom Waits sued someone (for some reason I'm thinking it was Wrigley's or Frito Lay but don't quote me) for an obvious rip of his voice in a commercial. He won. If memory serves, the company actually approached him first and he declined (he doesn't pimp products) so it was obvious that they'd hired someone to sound like him. [Not to be confused with the case when Island Records sold the rights to one of his songs to a product pimper and he sued both parties and left Island Records after winning the case.]
posted by dobbs at 9:41 AM on September 30, 2003

People still watch videos? Didn't they get the memo?
posted by Shoeburyness at 9:41 AM on September 30, 2003

I don't think he has much of a case.

I see similarities in the images, but only in a couple of examples (the first and fifth) does the Hollywood video look similar enough to Boudin's work to be an homage/rip-off. Several examples (numbers 6, 7, 8, 9) are more different than they're same.

The fact that Boudin is offering a contest (at the bottom of the page) for the best imitations of his work diminishes his credibility even further, whether or not it was started after his suit.
posted by me3dia at 9:42 AM on September 30, 2003

But I don't see anything there about Madonna or anybody else being sued. All that link does is document the similarities (some of them remote, if you ask me) between the "Hollywood" video and this thing of Bourdin's. The text of the page doesn't even read as though the writer's even particularly pissed about it, more bemused and maybe flattered ("Email this page to your friends!").
posted by JollyWanker at 9:45 AM on September 30, 2003

JollyWanker: I just noticed this same thing... I see no information whatsoever about bad blood, a lawsuit, etc...

I jumped the gun believing the asshat who posted this.
posted by twiggy at 9:52 AM on September 30, 2003

Um, the video and song also suck.
Does that have any bearing on the case?
posted by signal at 9:53 AM on September 30, 2003

Madonna's like David Bowie. Not exactly brilliantly talented, but able to see where the market is, what the kids want, and able in a manner that surely feels like brilliance to deliver just that. And again, and again, and again.
posted by xmutex at 9:55 AM on September 30, 2003

Here's a story on the suit. Don't jump the gun on the asshat-calling.
posted by me3dia at 9:55 AM on September 30, 2003

I take back my asshat remark and apologize...

lawsuit story here... which shoulda been on the FPP though...
posted by twiggy at 9:59 AM on September 30, 2003

There is an actual lawsuit, filed in the US District Court in Manhattan (just GoogleNews madonna and bourdin)


"The fact that Boudin is offering a contest (at the bottom of the page) for the best imitations of his work"
I'm pretty sure the site's curator is sarcastic, jollywanker.
like, "let's see if you guys at home with your digital Casio can plagiarize Boudin better than Mondino did", it's funny

Mondino has been a Bourdin wannabe for most of his career, so that peculiar hommage doesn't surprise me much.
on the other hand the irony of Madonna being sued for copyright theft, as pointed out already by others, is delicious
posted by matteo at 10:00 AM on September 30, 2003

right, so an asshat could have said "newsfilter!"
posted by archimago at 10:02 AM on September 30, 2003

It's the son who is sueing. Kinda brings a new angle to it.

"Madonna's like David Bowie"

I don't think so. Different times, different places, different attitudes. In any event, which of Madonna's albums can be heard entirely over and over and over again ? Not one, IMHO.
posted by magullo at 10:08 AM on September 30, 2003

I don't follow Madonna's career that closely, but hasn't she always done this? Wasn't the "Material Girl" video an "hommage" of Marilyn Monroe's "Diamonds Are a Girl's Best Friend" number from Gentlemen Prefer Blondes? Didn't she also do a shot-for-shot "homage" of some Playboy layouts from the sixties?
posted by timeistight at 10:21 AM on September 30, 2003

"Madonna's like David Bowie"

Uh huh. And Procol Harum is like J.S. Bach. They both use the same melodies, after all.
posted by soyjoy at 10:24 AM on September 30, 2003

the problem with no-talent Madonna (always a mediocre singer, mediocre dancer, mediocre songwriter, unspeakable actress -- Swept Away, anybody?) is that her genius for self-promotion and incessant rebranding after all these years has removed her so far away from the original sources of her quote/unquote "inspiration" that she is, in 2003, basically an alien.
she's in demographics hell -- her 1980's fans are too old by now, she's not a viable sex symbol anymore, etc
and it's not a pretty sight, every manufactured "scandal" (the car crash video, the unAmerican video, the torture video -- yawn) now is simply boring.

Personally, I like her early stuff. You know, "Lucky Star," "Borderline" - but once she got into her "Papa Don't Preach" phase, I don't know, I tuned out.

also, I blame Miguel

posted by matteo at 10:35 AM on September 30, 2003

Madonna's like David Bowie. Not exactly brilliantly talented, but able to see where the market is, what the kids want, and able in a manner that surely feels like brilliance to deliver just that. And again, and again, and again.

I don't know anyone who honestly likes Madonna, and maybe one or two that think David Bowie has a couple of good songs. One of them's my mother. What planet are you from?
posted by angry modem at 10:36 AM on September 30, 2003

oh, and I kind of like some of David Bowie's stuff, but my main point is that they're not as important as they try to make themselves seem.
posted by angry modem at 10:38 AM on September 30, 2003

Madonna's like David Bowie

Their similarities are that they're both overplayed, overpraised, and long overdue for retirement. Other than that, they're completely different.
posted by dobbs at 10:42 AM on September 30, 2003

That Guinness advert with the sideburn dude leaping around to a mambo was also a rip-off of an experimental dance film. All the way down to the eyebrow wiggling.
The original artist lost his case againt Guinness.

Original concept.
posted by asok at 10:47 AM on September 30, 2003

what about j lo's latest video where she does a splashdance ripoff nearly scene by scene? i think she got permission to do that though.

Actually....
posted by highindustrial at 10:53 AM on September 30, 2003

I don't know anyone who honestly likes Madonna

Allow me to introduce myself . . . .

This really wasn't meant to be a Madonna-bashing post, which it has sadly turned into. I question where inspiration becomes theft. EVERYONE bases their "art" on what has come previously. No one creates in a vacuum. Is there no safe way to pay homage to someone anymore? Is this different than Dylan taking lyrics from a novel?
posted by archimago at 10:58 AM on September 30, 2003

don't forget the sex book (nfsw) - madonna's not that bad. she's no musical artist, but at least she's interesting sometimes. and she burns crosses.

fwiw, there's no way i'd side for Boudin if i were on the jury. i'd need a bit more explication about infringement, but his is a photograph and hers is a video--they'd have to be a *lot* more similar for me to find against her. unless there's some real confusion as to the creator, i have no problem with cutups, homages, etc.

i couldn't get the lawsuit link to work, so here's another one.
posted by mrgrimm at 11:02 AM on September 30, 2003

nfsw = not for some workers
posted by mrgrimm at 11:08 AM on September 30, 2003

I would argue that Madonna often has the foresight to seek out producers that will give her a distinctive sound, while Bowie tends to write songs that mimic a new sound. The talent of each may be the ability to identify what may become trends and absorb them into a personal image.

I know a few people who bought Madonna's Ray of Light album due to William Orbit's production work.

Lots of mainstream artists take from the fringes and homogenize styles to create their own work. With Madonna, it's just more obvious. Her visual and social image is no different from her musical one; it just reaches a little further in scope.
posted by mikeh at 11:13 AM on September 30, 2003

Madonna is not like David Bowie.

Got that?

Sheesh. And mrgrimm, when you say that Madonna burns crosses, are you saying she's a member of the KKK. Because I hadn't heard that.
posted by Outlawyr at 11:21 AM on September 30, 2003

A good example of why my argument, that photographs of the real world, should not be copyrightable, is right. I thank you. I rest my case. Goodnight.
posted by Blue Stone at 11:22 AM on September 30, 2003

Right--Bowie's *Much* prettier than Madonna
posted by Fupped Duck at 11:24 AM on September 30, 2003

Blue Stone, while I think this case is lame, I don't see that as reason to make photographs completely unprotected. Copyright on photography exists to protect actual singular photographs. If I took a perfect shot of [insert famous person's name] then MY photo of them should be protected as to how I want it distributed. However, that does not stop anyone from trying to take a similar photo themselves. The literal photograph is protected, not the subject matter. That is how copyright law, to my limited understanding, applies to photography. And, that is the way it should be.
posted by tcaleb at 11:31 AM on September 30, 2003

"oh, and I kind of like some of David Bowie's stuff, but my main point is that they're not as important as they try to make themselves seem."

All this Bowie bashing out of the blue! You people are nuts, Bowie IS the genius he gets credit for, and many more people agree with that statement than just me and your mother. Rock and popular music would not exist today as we know it had it not been for Bowie to come along and do what he did. Comparing him to Madonna is like apples and oranges, there really is no comparison.
posted by RoseovSharon at 12:45 PM on September 30, 2003

Is this different than Dylan taking lyrics from a novel?

Uh, yes, it's different, because Madonna is not comparable to Dylan. Nor Bowie. Without Bowie, there's no Madonna, and arguably, without Dylan, there's no Bowie.

You folks have heard of the developments in popular music previous to 1984, right?
posted by soyjoy at 12:53 PM on September 30, 2003

Insane! Bowie is a genius. I'm talking the first handful of albums here. I have no stomach for 80s or 90s Bowie.

You wouldn't discredit Dylan for all the shit he did after (the motorcycle accident) Blonde on Blonde. Well, everything excluding Blood on the Tracks)
posted by Satapher at 12:54 PM on September 30, 2003

To be fair, both Bowie and Madonna had a talent for reinvention with each successive album, but that's where the similarities end. While Bowie's musical innovations were almost always ahead of the curve and constantly ripped off by other artists (especially his albums from 1976-1980, which are pretty much single-handedly responsible for the existence of a number of bands from Depeche Mode to Nine Inch Nails), Madonna was always just a bit behind the curve, but specialized in making underground trends marketable to a mass audience.
posted by Prospero at 12:56 PM on September 30, 2003

The first and maybe the fifth images are similar. The others aren't even close. I don't think he is going to win the suit.

Damn. I didn't know someone had put the whole sex book online.
posted by SisterHavana at 12:56 PM on September 30, 2003

I'll second the Bowie=genius thing.

while I think this case is lame
Why is it lame? People are getting hung up here on whether the pictures look the same or not, but that's not even the issue. The issue is whether she intentionally copied them, and she did. That's clear both from comparing the similarities between the pictures (in copyright law you compare the similarities without regard for what's different) and from Madonna's admitted access to the original works she copied. She's a huge fan of his work and has prints in her bedroom that she looks at every day. Hello? She clearly copied this work, and she will lose this case.
posted by Outlawyr at 12:56 PM on September 30, 2003

I don't remember the name of the photograph she is using for the second image, but I know it's another theft/homage. Anyone?

I believe that image, along with much of the "Vogue" video, was copied from old "classi" Vogue magazine layouts, like from the 1940's or so. I looked through a big photography book of old Vogue layouts once and recognized several of the images as similar to the "Vogue" music video.
posted by dnash at 12:57 PM on September 30, 2003

Uh, yes, it's different, because Madonna is not comparable to Dylan. Nor Bowie. Without Bowie, there's no Madonna, and arguably, without Dylan, there's no Bowie.

Wow, you guys have completely missed the point of my post. Unless you are arguing that there is no theft in art as one begets the next begets the next.
posted by archimago at 12:59 PM on September 30, 2003

If Madonna didn't have an ass kicking body and a pretty face, she'd still be waiting tables. Period. Bowie is the real deal. Both are savy about marketing themselves, but Madonna just took it to a whole new level.
posted by reidfleming at 12:59 PM on September 30, 2003

Wasn't Bowie's real genius in theatrics? I like him well enough, but if you listen to a lot of old soul music, and Philly International hits, James Brown, etc., and T-Rex and the Velvets, blah blah, you'll find that - maybe, just maybe - Bowie was derivative in plenty of ways. He wasn't nearly as original musically as some people let on, which is not the same thing as saying he sucked - which he didn't, usually.

(Exercise: Take a listen to Wilson Pickett's "Engine Engine Number 9," say, which came out in 1970, then put it next to "Fame," released in '75. That James Brown later appropriated the latter for a late-period trifled called "Hot" doesn't make it any less non-original, nor does it make it any less funky.)
posted by raysmj at 1:14 PM on September 30, 2003

It first I thought it was ridiculous to even mention Bowie and Madonna in the same sentence, much less compare than as being equals. For a few minutes I was pretty ticked. Slowly but surely the concept of them actually being similar seeped into my brain and lodged there like a seed of doubt. I am now going to admit the unlikely and say that yes, Bowie and Madonna are indeed very similar, altho not necessarily musically.

• they both started or popularized musical movements - he the glam and she the dance/pop/80's.
• they both have a huge cult of personality
• they both manage their own business affairs
• they have both played the sex card to great success
• they both have had lavish live concerts
• in the musical pantheon they have become legends both for their music and their personas (though of the two, I think that Bowie has played far more musical influence in music than Madonna, not that she hasn't had her own effects)

posted by ashbury at 1:21 PM on September 30, 2003

Bowie was derivative in plenty of ways.
Like all musicians, he was influenced by those who came before him and the music around him. But his music goes in whole new directions. He was innovative and took risks with his music. He was the Beck of his time. Madonna doesn't take risks, she just keeps marching in front of the latest parade.
posted by Outlawyr at 1:23 PM on September 30, 2003

outlawyr: Plenty, if not most, of Bowie's songs didn't head out in any new direction - they were (often mild) reinterpretations of sometimes very old directions. This, again, doesn't mean he sucked. For gosh sakes.
posted by raysmj at 1:27 PM on September 30, 2003

Outlawyr, as I mentioned earlier, my understanding of copyright law is pretty limited, so I guess I am espousing opinion rather than fact. The reason I think it is lame to be worked up about this situation is that all art is derivative. As one of my good friends told me once, 'give up the illusion that you are doing something that has never been done before'. Good art gives fresh perspective to old things. Bad art includes, amongst other things, blatant rip-offs which will hopefully be recognized as such and ignored. I feel like (to hedge: in most cases) lawsuits are excessive.

(I understand there is a large commercial angle in this case which makes it more complicated. That said, if I were the photographer, I wouldn't want to solve the problem with a lawsuit. I guess it isn't really my style).
posted by tcaleb at 1:33 PM on September 30, 2003

I don't know anyone who honestly likes Madonna, and maybe one or two that think David Bowie has a couple of good songs. One of them's my mother. What planet are you from? -- posted by angry modem

Apparently the one where Madonna and David Bowie sell millions of records to people you don't know. :>
posted by fletchmuy at 1:36 PM on September 30, 2003

All artists' outputs are exactly equivalent to scattered cutups of their inputs.
posted by Satapher at 1:53 PM on September 30, 2003

Bowie and Madonna? They're both people who've made careers out of finding underground music and polishing it up for the mainstream. Bowie's early stuff owes a bit to folk-era T-Rex as well as many other things, Dylan included. His glam period toned down Iggy and Lou Reed for the mass audience. His funk period was, well, toned down funk. And stuff like "Low" and "Heroes" owed much to Fripp and Eno, not to mention bands like Can, Kraftwerk, etc. etc. After that, he's been even less innovative.

Madonna, at her best, simply takes what's going on in the clubs and turns it into pop - (I'll ignore her mostly dull ballads). "Lucky Star", "Like A Prayer", "Beautiful Stranger", and a few others are classic dance tracks and I like them a lot better than anything Bowie's ever done, except perhaps, "Rebel, Rebel". Neither one of them are musical geniuses, but I'd pick Madonna over Bowie any day.

As far as the lawsuit is concerned, it's ridiculous. Did Boudin invent women looking into round mirrors? Red backdrops? Laying on a bench with an arched back with something red on you? Is he the only guy who ever took that kind of picture? (I wonder what a look through 40 years of Playboy or even more years of Cosmo might reveal.) All she needs to do is find some prior art (NSFW) and she's won the case. I would think that 1899-1900 would be early enough.
posted by pyramid termite at 2:06 PM on September 30, 2003

How many songs has Bowie written. How many has Madonna written.
But whatever, there are bigger fish to fry. "Prior art" is a patent concept, not relevant to copyright law. The issue is simple, did she create a derivative work? Yes, she did. End of story, Madonna loses. Even if you think the Madonna video isn't identical to the photos it was based upon, even if you think lawsuits are lame, that does not change the fact that she will lose because this is about as clear cut a copyright violation as you're going to see. Only a self-absorbed moron like Madonna would think she could get away with this "homage." It appropriates way too much of that which it seeks to "honor."
posted by Outlawyr at 2:32 PM on September 30, 2003

archimago, looks like this train has derailed
posted by maceo at 3:09 PM on September 30, 2003

MetaFilter: Your favorite pop idol sucks
posted by shadow45 at 3:21 PM on September 30, 2003

"I don't know anyone who honestly likes Madonna

Allow me to introduce myself . . . ."

And I bet you like professional sports too, dont'cha?!
posted by insomnia_lj at 3:44 PM on September 30, 2003

soyjoy, what is this 1984 you speak of? I was not aware of any development in popular music after 1974.

All popular artists create derivative work in one way or another, as they cannot help but be influenced in some way by the music around them. Madonna has simply been able to predict the market better than most and produce products that trail the cutting edge closely enough to make people think she is producing something new. David Bowie was, of course, influence by others, but he broke a lot more ground and pushed closer to the edge than Madonna ever has or ever will. She was one of the first popular music artists that was able or prepared to re-invent herself as the market changed, where most artists develop a style and only remain popular while that style is still fresh in the minds of the vapid consumers who rush to buy whatever is on the "new releases" rack at the music store.

The images in question are marginally similar to the photos of Boudin's, but how many images had to be compared before the matches were found? Any professional photographer who has been working for several years would have thousands of photos, some of which would be similar to these. If it is an issue of copyright, it does not matter whether the photographer is well-known - according to this lawsuit, any photographer who has taken a similar photo in the past could claim breach of their copyright. There are certain poses and styles that are considered universally sexy and Madonna has simply placed herself into these backdrops to sell herself. As ideas cannot be copyrighted, it is not possible to claim that she has stolen the idea of these backdrops.

Disclaimer - the above is an emotional, rather than legal argument and, as such, means nothing.
posted by dg at 3:51 PM on September 30, 2003

The director of the video?
Nah. He was told to copy a certain style and did it. Hell, Madonna was paying him and no doubt suggested the video be in Bourdin's tone.
Did he raise the issue of possible copyright infringement? Who knows.
Did she approach Bourdin's estate/son regarding her "hommage"?
Who knows. Many unanswered questions here.

Only a couple stills resemble Bourdin's. It is a video, which may have the tone of Bourdin's work, but to actually choose photo's resembling stills from a video is reaching for it. A video isn't watched frame by frame, it is usually watched at 24/30fps [watching MTV]. Furthermore, the stills could never be printed in an 8x10 format and displayed separately in the same manner a print of Bourdin's could be and is displayed.

What of Madonna's intent?
The video is used to promote a song on a CD. No more. One song. The video isn't used to promote the CD, only a song. The cost of producing a video is astronomical [in Madonna's case] and to not have it vetted by a team of lawyers doesn't sound like my Madonna [said her Moms no, not really].

What pyramid termite said. It's been done before.

What about Bourdin's influences? I'd be curious to see who's work he admired.

What of Taschen's coffeetable erotica/fetish books? What about the influence of films from Taiwan, HongKong and Japan with their super saturated colors and topics [ Tetsuo II:Body Hammer]

Hey, fuck all that, I'm making a point here. You're gonna make me lose my train of thought.

Engine engine No.9, wasn't that Roger Miller's original or was RM singing Wilson Pickett's original.

Who's on first? comes to mind.

I say Bourdin's son goes home empty handed or maybe with $5.00 cab fare to the nearest pub for a stiff drink [depending on whom the judge is... of course].
posted by alicesshoe at 4:20 PM on September 30, 2003

I am going to take photos of people wearing red hats. Anyone else taking photos of people wearing red hats can expect to hear from my lawyers! <fume>
posted by Blue Stone at 4:54 PM on September 30, 2003

Some of those who wear corsets,
Are the same that burn crosses.

SOME OF THOSE WHO WEAR CORSETS,
ARE THE SAME THAT BURN CROSSES!

Voguing in the name of
posted by ursus_comiter at 5:14 PM on September 30, 2003

If this guy can successfully sue, then I would imagine the entire advertising industry would be paying out seriously to some artists. I mean, what Calvin Klein would owe the porn industry alone would break them.

As for Madonna, though I haven't always been into what she is doing at the moment as far as music, I think she is genuinely talented. And I think she is sincere as an artist. I've always viewed her life itself as a form of performance art. Sometimes she falls on her ass, but I always give her some credit for making the effort. What is most interesting about her is that when you see her in interviews, she is not as perfectly articulate and polished as she would like to be, and I think it reveals her as being like the rest of us, pretty much.

There are very few cultural touchstones that successfully endure her span of time and range of style. I understand that people don't like her, but those who fault her for lack of talent typically wouldn't match her in the arena.
posted by troybob at 5:33 PM on September 30, 2003

Copyright law for photography certainly does cover instances where a commercially-used photograph is obviously mimicing a copyrighted photo. But it has to be extremely blatant -- with lighting and composition and content being essentially identical. It also helps if there's evidence that the infringing photographer had knowledge of the copyrighted photo.

There was a case a while ago involving this photo on the cover of a Fatboy Slim album. The cover's designers had looked at some existing photos from an agency, including one photo almost identical to this one. Apparently they thought the agency's fees were too high, so they hired another photographer who *magically* produced a photo just like the one they'd looked at! The owners of the original photo sued -- and since it was obvious the designers had prior knowledge of the first photo, the designers lost. They (or the record company) had to pay damages much higher than they would have if they'd used the original photo in the first place.

So if Madonna had indeed seen a Bourdin exhibit just a few days before the video was shot ... it's not looking too good. (Then again, the differences between still photography and video will be an interesting legal twist.)
posted by lisa g at 6:41 PM on September 30, 2003

Outlawyr - obviously the concept of "we found these pictures that were just like Bourdin's that were done BEFORE Bourdin did his pictures" passed right over your head. I was using "prior art" in the descriptive, not the legal sense - however, a jury, when confronted with tons of similar pre-existing photos is going to conclude that the "ideas" aren't copyrightable - which, will be explained to them.

"Expressions, not Ideas, are Protected. This notion is not easy to apply in some circumstances, but it can be easily illustrated. Basically, what it means is that the author of a book has protection for her words, but not for the basic plot; or a photographer has protection from duplication of his picture of a tree, but not from other people taking pictures of trees or even the same tree." Bourdin's expressions, meaning the photographs, are copyrightable. Bourdin's ideas, assuming they were his ideas, are not. Are the composition of the photos identical? No. Are there significant differences? Yes. Are they in a similar style. Certainly - but you can't copyright style, anymore than James Brown could copyright funk or Picasso could copyright cubes.

Of course, Madonna's not some poor girl who's going to have to settle a case like this - she's got the money to drag this out for ages.
posted by pyramid termite at 7:10 PM on September 30, 2003

It may not matter whether or not madonna's videos are derivative if Bourdin's photography. One of the key elements of copyright law, as it regards derivatives is that it directly competes with the work in question.

If they do not both work in the same market, and they don't as he's a photographer and she makes music/videos, then he might not actually have a case. For one: it's not a direct copy - this isn't copyright infringement in the same way that pirating CDs is. This would be copyright infringement in the same way as satire, parody, or fan fiction. Satire and parady are protected - fanfic in not.

So - the question of how her derivative work affects and is related to his own work can be called into question - and should be if the lawyers are any good.

I'd almost bet money that they got together before all this started and decided to make this ruckus to get more press for the both of them.

Btw, I think they both suck.
posted by jaded at 7:13 PM on September 30, 2003

Bourdin's dead, by the way. The lawsuit is being perpetuated by his son.
posted by archimago at 6:11 AM on October 1, 2003

the differences between still photography and video will be an interesting legal twist.
No it won't. It's a derivative work, the change in medium from still to motion picture doesn't undermine the claim. This is not a novel legal issue.

a jury, when confronted with tons of similar pre-existing photos is going to conclude that the "ideas" aren't copyrightable
The jury won't be confronted with pre-existing photos, they aren't relevant. The jury or the judge deciding the case will hear that Madonna admits to having access to the photos, that she instructed the art director to mimic the look, style, poses of certain photos, and that will be the end of it. If there is anyone here with an actual knowledge of copyright law who disagrees with me, I welcome your input. Everyone else, you honestly don't know what you're talking about. Your emotional response to this doesn't change the law.
posted by Outlawyr at 6:15 AM on October 1, 2003

archimago - the 'original' image for that vougue video is this one; Horst, 1939.
posted by dabitch at 8:24 AM on October 1, 2003

Nobody ever said MetaFilter was supposed to be a panel of experts. And whether you welcome input from anyone is irrelevant. I don't think anyone here has claimed intimate knowledge of copyright law. People have given opinions based on how they feel about the issue, the artists involved, and how this issue is paralleled in other ways that have been generally acceptable or unacceptable. These biases have been pretty wide open. I mean, outlawyr, your own posts here have been a veritable emesis of disdain for Madonna, so your strict legal opinion on the matter is suspect, and the claims of fact made in your last post are not supported by any article so far linked to this story.

Madonna and the director haven't exactly kept their knowledge and appreciation for Boudin a secret. Given his prominence and recognition as a groundbreaking artist within their own circle of contemporaries, it is probable that they expected these similarities to be discussed.

pyramid termite: Your use of a tree as an example is interesting, as it brings to mind how Pebble Beach has somehow placed limitations on the commercial use of any photograph of a particular tree on their property. I don't know if that limitation still stands or if it has been challenged.
posted by troybob at 8:38 AM on October 1, 2003

Thank You dabitch!! I knew it was a famous photograph but couldn't remember the name!!!
posted by archimago at 9:02 AM on October 1, 2003

(I know, it took me forever - 69 comments - to remember it too. Lovely shot though isn't it? Myth has it that the model is crying as the Germans are marching into Paris that very day.)
posted by dabitch at 9:04 AM on October 1, 2003

emesis of disdain
Hey, that would be a good name for a Madonna song. But honestly, I'm capable of analyzing a legal issue without regard to my feelings about the parties. I don't respect Madonna as a musician or the "artist" she claims to be, that has nothing to do with whether she violated a copyright or not. As for the facts, they are the facts as I understand them from reading the article, plus some inference. I don't think anyone here is claiming the similarities between the photos and the video were coincidence. She admits to owning prints of his photos and being a fan of his work. It seems fairly obvious that she instructed someone to adopt that style. But if I were going to trial I would certainly want to depose the video crew and see what they have to say.

And yes, everyone has a right to their opinion, but it's silly to give an "opinion" on a question of law about which you know nothing. It adds nothing to the discussion. It would be like saying, I don't think OJ killed his wife because he's a football hero. So what. Or in this case saying, hey, I can find other pictures with a red hat, so Madonna will win her lawsuit. It just doesn't work that way.
posted by Outlawyr at 9:07 AM on October 1, 2003

It's a derivative work, the change in medium from still to motion picture doesn't undermine the claim.

So by that logic, the estate of Shakespeare can sue Jane Smiley for writing "A Thousand Acres," a re-telling of King Lear in modern-day Iowa? Did the producers of "Clueless" have to petition the estate of Jane Austen to base their movie on the plot of "Emma"?

What about designers who knock-off haute couture original creations and sell it to the masses at cheaper prices? Are they liable to be sued as well?

I understand your legal input here, and your disdain for Madonna, but personally where do you draw the line between theft and homage?
posted by archimago at 9:11 AM on October 1, 2003

Interesting.
posted by rex at 9:23 AM on October 1, 2003

archimago, if you're interested in copyright law there are books on the subject. You might even consider taking a course. It is an interesting topic.

Many old and dusty works are in the public domain. They no longer are protected by copyright, anyone can make derivative works, or copy them verbatim till their heart's content.

where do you draw the line between theft and homage?
That is a question of fact for the judge or jury to decide IF there is no direct evidence of copying. Here, there's no question. Madonna copied a protected work without permission, she created a derivative work, and she will have to give this guy some money to make him go away.
posted by Outlawyr at 9:27 AM on October 1, 2003

oops, hadn't thought about public domain. You got me there. :o)
posted by archimago at 9:33 AM on October 1, 2003

Interesting that none of her lawyers caught this, considering how she hasn't tried to hide that she was deriving from his work.
posted by archimago at 9:39 AM on October 1, 2003

Everyone should sue Madonna. She's such a staunch opponent of the stealing of intellectual property so she should get the serious smackdown for doing the same thing.

And her children's book is awful!
posted by fenriq at 12:20 PM on October 1, 2003

Outlawyr - it might be silly to give an opinion on a law one knows nothing about, but it's even sillier to 1) say that similar pictures would not be admissible as evidence as clearly, proof that the ideas were not Boudin's alone would eliminate him as the wronged party, 2) completely ignore the link and a quotation I provided from a GENUINE law school, which I presume knows more about these matters than you or I do - how come you didn't care to rebut what REAL LAWYERS said about this?

Currently, my "knowledge" about copyright law seems to exceed yours - after all, I'm providing references to back up my opinions - where are yours?

Re: the Pebble Beach Tree - This person claims to have actually used his picture of the tree on a book. When Pebble Beach sent him a threatening letter, his counsel told them to "go pound sand". No lawsuit was forthcoming.

And no, I'm not so overwhelmed with Madonna's work that I can't see this objectively.
posted by pyramid termite at 1:07 PM on October 1, 2003

Pyramid Termite. I assume you mean this link:
http://www.piercelaw.edu/tfield/CopyVis.htm
That link has nothing to do with the Madonna case, it is black letter copyright law, or an attempt at it. One must apply the law to the facts of each case. You might think it's silly that similar pictures won't be admissable into evidence. But they won't. So it doesn't really matter that you find that silly. And I cannot rebut REAL LAWYERS who aren't REALLY saying anything on the topic at hand, and are in fact supporting my argument with statments like this:
"If the person creating a second work had access to the original work and the works are virtually identical, copying is likely to be presumed even if the chance of access is remote."
I don't know what you're getting so angry about. If you don't like the rules of evidence by all means petition your local politician to have them changed.
posted by Outlawyr at 2:14 PM on October 1, 2003

Outlawyr - look at this. A REAL COURT ruling with REAL LAWYERS and everything.

And I cannot rebut REAL LAWYERS who aren't REALLY saying anything on the topic at hand,

You can't rebut ANYONE unless you're willing to provide some real references, not just hard-headed opinion and blanket statements. I've made my case and backed it up - you haven't. End of story and discussion.





(space reserved here for more vapid denials that this has anything to do with the Madonna case and more unreferenced opinions and crass generalizations)

Bye.
posted by pyramid termite at 3:41 PM on October 1, 2003

1) You don't know what you're talking about.
2) Citing to people who do doesn't change #1.
3) Read this case and perhaps you will learn something It involves the famous Saul Steinberg illustration of a map of New York, and a movie poster for Moscow on the Hudson that parodied that illustration. Guess who wins. This footnote might be of special interest: "1. Nolan claimed also to have been inspired by some of the posters that were inspired by Steinberg's; such secondary inspiration, however, is irrelevant to whether or not the "Moscow" poster infringes plaintiff's copyright by having impermissibly copied it."
posted by Outlawyr at 5:51 PM on October 1, 2003

after reading the moscow on the hudson case (thanks, outlawyr), madonna's going to lose i think (see 20 and 21 of the link). I bet the lawyers at her label thought they could get away with it.

I wonder about the gentlemen prefer blondes video for material girl, but i think madonna was on warner bros then, and maybe they made that movie?
posted by amberglow at 6:04 PM on October 1, 2003

it's silly to give an "opinion" on a question of law about which you know nothing

But the opinion in this thread has been clearly given as opinion and not expertise. There is a lot of curiosity here about what the law exactly states, and there are opinions about what it should address. It is just an attempt to meet common sense with codified law, no different than similar debates we see when, say, some computer company patents a ridiculously common procedure; we struggle to understand why it can happen, and we offer our opinion that it should or should not be that way. I don't have to be an expert to say that I don't think Madonna should be sued for doing this, from what I have seen so far; if the law says otherwise, I am giving an opinion on the law itself and trying to understand how it protects artists more than limits them in the long run.

Part of my wonder is why Saturday Night Live, for instance, can do a parody of a TV program, using the same graphics/style/personalities, and not be similarly sued. Sure, you can say there is some allowance for parody that is strictly defined, but ultimately it is a subjective judgment. Madonna could say that the style of her video is itself a form of parody, particularly given that the song itself is a critical commentary. Jewel just did a video in the style of Britney Spears and her like; the style and content of the video was itself a critique. Add to this the fact that all art is necessarily derivative, and you've got something that can't be neatly defined.

I do think an interesting angle to this story is that the style of this video is a throwback to an image that Madonna was putting out years ago, particularly with her Erotica album. A lot of the scenes in question are quite similar to those in videos made years ago; in fact, Madonna straddling a television was a prominent image in her "Take a Bow" video. One justification for filing suits like this is that the copyright owner must actively prosecute violations in order to maintain the status of the copyright, or risk losing it. It would be interesting to see if the Boudin estate failed to act on possible earlier violations, and how that affects their current claims.
posted by troybob at 7:25 PM on October 1, 2003

Troybob, there is a difference between a color blind person saying, "I like the taste of apples" and the same person saying "I think apples are orange." If someone doesn't like lawsuits that's fine, but to say that the jury will see "prior art" or other such nonsense just muddles the issue. There's a difference between an opinion and a display of ignorance.

"Part of my wonder is why Saturday Night Live, for instance, can do a parody"

Because it is a parody and is protected under the fair use doctrine. The Madonna video is not a parody. Not even a little bit.

"One justification for filing suits like this is that the copyright owner must actively prosecute violations in order to maintain the status of the copyright, or risk losing it."

Is that an "opinion"? You are thinking of trademark law. There is absolutely no need to prosecute violations of copyrights in order to protect them. The copyright owner can sue or not sue, can give permission for others to use the work or not. That is not an opinion, that is the law. There is a difference.
posted by Outlawyr at 7:00 AM on October 2, 2003