Artist Maya Hayuk of Brooklyn filed a complaint against RCA Records and Sony Music alleging that several aspects of her mural “Sunshine” were incorporated into the music video for “I Only Wanna Give It To You” by Elle Varner.
In her complaint, Hayuk states that she her career includes more than 75 group an solo gallery shows, installations, and murals throughout the U.S. and several countries. Her work has been licensed for use on several different goods, and she normally commands “premium fees and royalties” for their use in commercial settings.
According to the complaint, Hayuk originally created the mural for a music video, also called “Sunshine,” for a video by recording artist Rye Rye and M.I.A. In that music video, the artists rap in front of her mural. Hayuk claims, however, that she did not authorize the use of her mural in Varner’s video.
One of the most often-cited cases involving “incidental use” of artwork is Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997). In that case, a television show used a copyrighted poster as a piece of set decoration. In one scene, the poster was partially visible for 26.75 seconds. There was nothing in the show that called attention to the poster. It was never referenced, discussed, nor focused upon. The Defendant argued that this mere glimpse of a poster was a de minimis use or fair use. The Second Circuit, reversing the lower court, held that 26.75 seconds was enough to overcome the de minimis use defense. With respect to fair use, the Second Circuit held that the use was not allowed under that doctrine because there was no transformative element to the use.
The video at issue in this lawsuit differs from other similar suits in that the mural does not merely appear in the video as an incidental use, but that it includes scenes incorporating “videographic reproductions of Hayuk’s Sunshine.”
Indeed, the video seems to be aesthetically based upon the mural. The performers wear the same bright colors and patterns featured in the mural, with several scenes cutting to Varden dancing and singing in front of a brightly colored bed that looks similar to the mural, walking through a line of actors carrying boxes of similar colors, and, one of the biggest similarities, colorful circles that seem to be pulled right from the mural indicating cuts between scenes. While previous cases have dealt mainly with artists’ work being used in the background in movies, television shows, and music videos without permission, the difference here is that the music video director seems to have used the mural as the aesthetic basis for the video.
Because the mural seems to dominate the overall theme of the video rather than appearing just for a moment, it seems the claim has some traction.
Watch the video in question below.
[youtube=http://www.youtube.com/watch?feature=player_embedded&v=lqm35nwZzi8]
