What do a tattoo artist, TikTok creator, wrestling star Randy Orton, Netflix’s “Bridgerton” series, NFTs, Instagram and Andy Warhol’s Prince portrait have in common? They all figure prominently in recent copyright infringement and intellectual property lawsuits.
These diverse creators and media channels are all currently involved in litigation, from district courts to the U.S. Supreme Court. And they center around the legal definition of “fair use” when it comes to new media.
It used to be that a lawsuit of this type was about someone stealing someone else’s song, idea or perhaps a book. But now, there are many more platforms where artistic content is displayed, and the courts are having to answer questions as to the rights of creators, competitors and fans in reinterpreting others’ intellectual property. How much does an artist need to transform another person’s work to be able to get credit for it and profit?
A tattoo artist sued a video game company for depicting tattoos she inked on her client, WWE star Randy Orton. She was awarded only $3,750, as the court found that her tattoos did not impact company profits from the game. But it still sets a precedent.
Last month, Netflix settled a copyright suit against “Bridgerton” fans, who wrote and performed an unofficial musical of the series on TikTok. Musician Emily Bear and singer Abigail Barlow created an interpretation of “Bridgerton,” taking the concept of fan fiction to a new level. It was a big hit, and at first, Netflix was OK with it and even approved their album. But when the women started touring the show and selling tickets, the company sued.
Misappropriation of another’s work of art is especially common in the fledgling field of NFT art. Anyone can copy an artist’s work and spread it across the internet, charging others for something they did not create. There are several lawsuits concerning NFTs. In one, fashion firm Hermes filed a lawsuit against Los Angeles artist Mason Rothschild, who created NFTs that were depictions of Hermes Birkin bags cloaked in fake fur. In the suit, Hermes charges the artist with trademark infringement in addition to reputational damage. The artist’s lawyer argues that his project is an artistic statement about art and consumerism.
California’s Central District Court recently heard an infringement complaint between photographer Carlos Vila and fashion business Deadly Doll, involving the model, Irina Shayk. Vila licensed his image of Skayk for reproduction, but then Deadly Doll posted it on their Instagram. He sued and they countersued. Both claim that the other is the infringer.
And the Supreme Court will consider the case between the Andy Warhol estate and photographer Lynn Goldsmith. Warhol is accused of copyright infringement through his use of Goldsmith’s Prince photograph to create silkscreens.
In today’s remix and repackage culture, legal issues that were once clear have become murky. What’s decided in these court cases could substantially change how people can or cannot create art.