Pop-singer Pink and her label, Zomba, have been sued in Manhattan federal court by commercial artist Vladimir Kush, who claims that an opening image in one of her recent videos was stolen from a 1998 artwork of his, which you can view here. The images do, in fact, look extremely similar to me. The video in question, available here, is the one that promotes Pink’s single “U+Ur Hand” from her “I’m Not Dead” album. (As is often the case with my posts on copyright issues, I’m piggybacking here on yesterday’s post from William Patry’s Copyright Blog, available here, entitled, “Artist Sees Pink, Wants Green.”)
Both images show a woman dressed only in red stockings clinging to the spine of a book in such a way that when she splays her limbs the book will open. Kush calls his work Contes Erotiques, which I assume is French for “Debbie Does Dewey Decimal System.”
Since attorneys for Pink (a/k/a Alecia Moore) have not yet entered an appearance in the recently filed case, I haven’t yet contacted them for comment. I’ll try to get a comment from Zomba this morning. (Zomba is ultimately owned by Sony (SNE) and Bertelsmann AG.)
I asked Patry, who recently wrote a seven-volume treatise on copyright law (see here) and is now senior copyright counsel at Google (GOOG), his thoughts on the case. He thought that even if Pink (or her technicians) did copy from Kush, there would still be significant questions about whether what was stolen was merely an idea (which can’t be copyrighted) rather than expression, and whether the theft was too fleeting — the image is shown only for about a second, if that — to rise to the level of infringement.
“In my view,” writes Patry in an email, “it is very likely . . . that defendants copied from Kush unless the image in Kush’s painting has occurred in other, well-known paintings. . . . But I don’t think even if Kush created the image for the first time that he obtains a copyright on all other depictions of a naked woman mounting the back of a book spine. I think that’s all defendants took: the ceramic figure in the music video looks exactly alike in concept but not actual features.”
How would readers rule in this case?