“[Some] of the Stars” Are In the Hot Seat for Possible Copyright Infringement

I’m not sure if you’ve heard about the lawsuit against Universal Music Group, Kendrick Lamar, SZA and other creatives who were affiliated with the song “All of the Stars” that was on the Black Panther soundtrack. Lina Iris Viktor is a British-Liberian artist based in New York, who created a Constellation series that caught the eye of the creators of the Black Panther film. Film producers requested permission to borrow Viktor’s work in the film and she respectfully declined to grant permission, only to find similar works of art in Kendrick Lamar’s music video “All of the Stars”. Viktor wasted no time filing suit against Kendrick Lamar whom she accused of copyright infringement.

Viktor found the offending work to be “appropriated and misinterpreted” in All of the Stars. Viktor’s work is based on ancient African symbolism. The creative process is extensive and labor intensive, as each segment of the work is very unique. Viktor molds each painting in resin and coats it with 24 karat gold leaf and black paint. The gold is symbolic of the wealth and richness inherent in the African heritage.

In March of this year, Viktor filed her copyright infringement suit. Defendants recently filed a motion for summary judgment to dismiss Viktor’s claims for actual damages and indirect profits. Statutory damages are not available to her because her works were not registered at the time of infringement. Viktor demands damages from album and single sales of the song, even though the infringement occurred in the video of the song. Defendants filed motion for summary judgment on the basis that there was no direct or causal link between song profits and the alleged infringement of her work in the music video, which was released prior to the Black Panther film.

Defendants cited case law from the 9th Circuit where prior cases were dismissed on summary judgment for plaintiff’s inability to show non-speculative evidence demonstrating a causal nexus between the act of infringement and the profits generated indirectly from the infringement. The judge in this case was not exactly convinced. While he dismissed Defendants’ claim for summary judgment at this stage, it was done so without prejudice, which means Defendant may bring the claim again later as the case progresses. Judge Engelmayer noted that the cases in which Defendant relied to make its claim, were decisions that were upheld after a fully developed factual record. Judge Engelmayer believed the summary judgment motion against damages was too premature at this stage and would like for more evidence to be placed on the record prior to making a determination as to whether or not there exists any non-speculative evidence.

I think Viktor has her work cut out for her. I see the resemblance between the two works indeed, however her work was no infringed in his song, which is where the profits were generated. I think it will be hard for her to prove that consumers purchased the song or album based on the use of her work in the music video. We certainly cannot forget that Black Panther was one of the biggest grossing movies of all time, which could have easily contributed to sales of the songs and albums associated with it.

 

Stay tuned…