Rihanna Slapped with Copyright Infringement Lawsuit: Fenty on Fire

*** The writing does not, and is not intended to, constitute legal advice by any means***
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From the complaint

The era of Victoria's Secret's end-of-the-year extravaganza is now gone, but Fenty is rapidly filling the void. Founded by Rihanna in 2017, Fenty is one of the fast-growing businesses in the grand Maison of LVMH. Forbes reported that the business generated nearly $30 billion in sales just in the first six months of 2019. Its recently launched beauty line is also propelling the revenue stream, although its clothing line has so far turned out to be less successful. Rihanna seems to be a savvy businesswoman, and, in collaboration with Amazon Prime, live-streamed the latest Savage x Fenty collection featuring supermodels of our era. Enough with heaping the praise for now. Rihanna was sued by The Khans, a German musician duo (actually a father and a daughter), for infringing the duo's copyright in their song, which Rihanna used as a background for an at-home styled "ad" for Fenty. 

According to the complaint the Khans recently filed with the United States District Court for the Central District of California, Rihanna used the song "Good Habits and (Bad)" without getting a permission or a license. The song is federally copyrighted in the territories of the United States. What's getting tricky here is that Rihanna accessed the song via streaming service platforms such Spotify and AppleMusic. By soundtracking the song for a promotional video she posted on her Instagram, the Khans allege that she effectively created an infringing derivative work. I referred to the video as an "ad" earlier, because this is not a typical fashion advertising campaign you'd normally see in the pages of Vogue. The video has garnered, at the filing of the complaint, more than 3,400,000 views in total. The Khans are asking the court to grant both general and special damages. Special damages can be awarded statutorily if it can be proven that the act of infringement was willful. The court can, in its discretion, increase the award of statutory damages to a sum of $150,000 in such case. See 17. U.S.C. § 504

The only defense I can think of right now for Rihanna is fair use, which allows (extremely) limited use of a copyrighted work without the copyright holder's permission. And here's a breakdown of how each factor in the fair use defense would likely to be evaluated.

1) The purpose and character of the use: The "ad" is commercial in nature. It's promotional. I don't think a court would find Rihanna's use of the song transformative.

2) The nature of the copyrighted work: Not good for Rihanna, either. It's a copyrighted work, and music has always enjoyed strong protections in law.

3) The amount and substantiality of the portion taken: The post is now deleted, but, according to the complaint, it seems to be the case that Rihanna almost took the entire song. This factor would have worked to her favor if the song was featured transiently - like 10-15 seconds. From a qualitative point of view, a court can also find that Rihanna substantially took the song's essence for commercial gains.

4) The effect of the use on the potential market: I'm not sure how this factor will play out. Will their licensing markets overlap? This factor needs more facts to make the determination.

Source: Instagram official website

Earlier this year, Instagram released its own guideline for playing copyrighted songs when using the Live feature. It recommends shorter clips. It explicitly warns that "there should always be a visual component to your video; recorded audio should not be [its] the primary purpose." The algorithm will catch if you continue to broadcast copyrighted songs for a lengthy period of time by means of sending an alert (pictured above). So the same logic can be applied in the current case. What meaningful difference there is between a live broadcast and a post. Rihanna is an established musician, and I am puzzled why she didn't bother to check potential legal issues before posting it online. I do not know whether this case will be ultimately settled, but when Rihanna returns home from Barbados, she might have to spend the rest of the year preparing an answer to the complaint.

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