Thursday, February 17, 2011

Calling the kettle 'Deep Onyx'

So, what has been going on? Any news in the music video world. New Radiohead music, new Britney video ...

Oh yeah – the DefJam/Rihanna/LaChapelle battle over the provenance of the Melina directed video for ‘S&M.

As stated over on VideoStatic, the specifics around what is and what isn’t stealing/copying/whatever is kind of well-trod ground and I don’t want to go over anything frame by frame except my new BluRay of ‘Hobo Porn 17: Dumpsters of Glory.’

We have all seen discussions like this before, like when Filter took a page from Crewdson and Lady Gaga has made a career out of doing the same to performance artist Leigh Bowery. Even LaChapelle himself has been on the other side of the issue with his J-Lo ‘Flashdance’ clip. What is NOT mentioned in this NYT piece is if LaChapelle and the label got permission before or after they started down Adrian Lyne's road. As I recall, the label decided to get (pay for?) studio approval only after the video was completed and once they realized they might be open to a suit just like this one.

One way that Lopez's “I’m Glad” clip is like Rihanna’s “S&M” video is that I doubt either idea originated with the director. I would imagine that the artist or manager or label already had aping LaChapelle in mind before they ever contacted a single director. To back that up, on antville kalstark references a cryptic Joseph Kahn tweet that seems to be (but isn’t necessarily) about this Rihanna video:

Turned down a vid cuz they wanted "visual references." That vid ended up complete steal of a photographer's work. Yikes.

I imagine Island Def Jam was pushing to get a LaChapelle-ian look. The track is called ‘S&M’ fer criisakes – and that is an area the photographer has explored extensively. Also, LaChapelle uses bright colors and a pop sensibility – things that would certainly lessen the scary vibe that might have been there if the lyrics of the song had simply been acted out in a video. Labels often adjust the message or intensity of a song with the visuals and since LaChapelle made bondage 'fun' in his photos, he’s a perfect reference point for this video.

So why not just hire LaChapelle for this Rihanna job? Directors at the level of LaChapelle don’t ‘need’ a music video job and I can’t imagine he’d want to go back to cover similar ground to those photos – many of which are years and years old. Tarantino doesn’t want to make Pulp Fiction 2 either. Perhaps LaChapelle might have been convinced to direct a video for 'S&M' but it would be something new and the artist’s people wanted the candy-colored sexual danger they had seen before – in their existing reference photos.

This whole thing has not yet made the ‘news’ section on LaChapelle’s website.

Also there is the small matter of money. LaChapelle's budgets are way, way higher than what Melina got to spend. The lawsuit references a 'million dollar fee' for music videos that LaChapelle has received in the past. I imagine that was the overall budget and not the director’s fee and the inflated number in the suit is a mistake or strategic to up the possible settlement amount. Also, the industry has changed a bit.

I am not a lawyer (I occasionally do play one on TV), but lawsuits like this hinge on damages. Real world, monetary damages. The fact that the Rihanna video is quite a bit like LaChapelle’s work and that hurt someone’s feelings is irrelevant to the legal system. Twitter and comments are all about who copied who and why that is so bad, and so on and so forth. However, proving damages (like, say, a million dollar fee that was lost) is the language of judges and lawsuits.

And here it gets to the interesting part, at least to me. Everyone reading this has submitted (or had submitted to them. Hi, label folks!) treatments with other people’s photographs attached. Sometimes they are stock images we haven’t paid for. Maybe they are location photos. Perhaps they were even photos taken by a famous fashion photographer and torn from Italian Vogue. The photos with this very post are culled from the internet. Hell, if the lawyers for Black Dog and IDJ are smart, they’ve already asked to see a gang of LaChapelle’s old treatments to show how common this practice is.

So we all have used reference images, but at the same time we are all SHOCKED that this Rihanna video looks like some fashion photos. Why?

Well, either because of label notes or directorial inertia – the final video looks a TON like the exact photos. The walls are the same pink. The female model is shot from the same profile. It looks like every effort was made to make as exact a copy as possible. In that way, this is ‘worse’ than most of the typical 'X is biting Y' discussions. But that also feels like an over-reaction. How was LaChapelle damaged – he wouldn’t be able to do the job for the budget they had, so maybe he shouldn’t care. At the same time, it would suck to feel ripped off, as LaChapelle must.

So there we are – I have no concrete conclusion about LaChapelle v Fenty et al. But this whole thing DID make me think of this awesome post by Devin Faraci over at Bad Ass Digest.

Faraci writes about that now-infamous Cooks Source thing where the editor copied a blogger’s recipe and then excoriated her for asking to be credited. The internet went NUTS over this theft and the rude reply – at least when they weren’t busy bit-torrenting songs online. Read the whole thing, Faraci makes some good points

Be outraged at what Cooks Source did here, but answer the question: how is this all that different from you stealing a movie online?

That is a very good question.

The internet is a place for Congressmen to troll Craigslist for strange, facebooking and downloading things you are too cheap to pay for. Studies have estimated that more than 50% of all internet bandwidth is absorbed by people illegally downloading songs or movies or porn (that they inexplicably want to save permanently on their hard drive for their significant others to find). That kind of stealing is much more of a real world threat to me (and probably you) than the Cooks Source thing or even this Rihanna-LaChapelle issue. But we creative types seem to get much, much more worked up about this kind of 'what is creativity' thing than people outright stealing the actual product.

I've been on about this topic for a while, but the best thing I've read is Faraci's headline, and it applies to this S&M issue perfectly:

The Internet Finally Finds A Kind of Copyright Infringement It Doesn’t Like

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