Brooklyn-based artist Maya Hayuk has filed a lawsuit against RCA Records and Sony Music over a music video entitled “I Only Wanna Give It To You,” by Elle Varner.
Maya Hayuk is a renowned muralist, with more than 75 gallery shows around the world. Her work has been published in books, magazines and websites. Hayuk also has licensed her art on apparel and consumer electronics. In 2010, she created a mural titled Sunshine that figured prominently in a music video, also titled “Sunshine,” by recording artists Rye Rye and M.I.A. Now, Hayuk says that Varner’s music video “includes numerous scenes that incorporate videographic reproductions of Hayuk’s Sunshine.” The complaint also raises the question of whether the mise-en-scène of the mural was appropriated by the video as a whole.
The mural itself appears for an aggregate of about 24 seconds in the video, which itself is 4 minutes long. It does not show up in its entirety in the video, as the shots are tightly focused on the performers, with only portions of the mural viewable on the wall in the background. Courts have not hesitated to dismiss infringement claims based on de minimis use where the copyrighted work is either displayed briefly; is not a prominent part of the video; is out of focus; is displayed in poor lighting; or is shown in the distant background. See, e.g., Dereck Seltzer v. Green Day, No. CV 10-2103 (C.D. Cal. 2010)(discussing fair use of public art as part of a concert backdrop); Forlenza v. AT&T, No. CV 03-8232, 2004 U.S. Dist. LEXIS 29549 (C.D. Cal. 2004) (dismissing infringement claim as de minimis where small portions of plaintiff’s mural appeared for no more than three seconds, and a larger fragment of the mural appeared for one second); De Batuc v. Spelling TV, Inc., CV98-6002 (C.D. Cal. 1999) (plaintiff’s mural, shown for no more than 4 seconds of a television show’s 50-second opening sequence was de minimis because it was displayed only briefly, and was distorted because of the rapid pace of the camera).
When applied to cinema, mise-en-scène refers to everything that appears before the camera and its arrangement—composition, sets, etc. Was the video aesthetically based upon the mural? Who knows. It’s just as plausible that the mural was used because it was aesthetically compatible with already chosen elements of the video.
Most importantly, the mural is a work of public art. It is on the side of a (abandoned?) building, viewable from the public sidewalk, street, etc. Although not impossible, it would be difficult to film the building without depicting the mural. Ostensibly, anyone taking a photograph that included all or a portion, whether intentionally or not, could be said to be infringing Hayuk’s copyright in the mural.
Should be an interesting case.