Copycat lawsuits have taken to new media as TikTok creators, game designers and Instagrammers have been sued.

New York

It’s strange that wrestling superstar Randy Orton, Netflix’s romance “Bridgerton,” TikTok, a tattoo artist, Instagram, NFTs, and Andy Warhol’s portrait of Prince appear in the same law school textbook.

A series of high-button lawsuits has tied up all these unlikely creators and platforms in lawsuits as high as the US Supreme Court. Litigation with issues of intellectual property, copyright infringement and fair use in a rapidly changing new media landscape.

For decades, so-called “copycat” lawsuits have been “you stole my song/book/idea.” Now that platforms for displaying artistic content have proliferated, these courts are testing the rights of fans, creators, and rivals to reinterpret the intellectual property of others.

The problem is, especially in social media or new technologies, how much you have to transform something to make money and credits, literally to be your own business.

Three weeks ago, in a first-of-its-kind case, a jury in an Illinois federal court ruled that tattoo artist Catherine Alexander’s copyright was violated when she was depicted in a video resembling her client, World Wrestling Entertainment star Randy Orton. the game Alexander has Orton’s arms tattooed from his shoulders to his wrists.

He won, but not much: $3,750, as the court ruled that even though his copyright had been infringed, his tattoos did not affect his gambling winnings. However, he set a precedent.

The ruling calls into question the ability of people with tattoos to “control their right to make or license realistic images of their likenesses,” said Aaron J. Moss, a Hollywood litigation attorney who specializes in copyright matters.

Blame it on the rise of remix culture. For most of the 20th century, mass content was created and distributed by professionals,” said Moss. “Individuals were consumers. The legal issues were fairly straightforward. But now, for the most part, the content is being reused, remixed or repackaged.’

“Everything is new and everything is a mess,” said Victor Wiener, a fine art appraiser who has consulted with Lloyd’s of London and serves as an expert in art valuation courts. In recent decades, the distinctions between professionals and amateurs, artists and copyists, and production and consumption have blurred. In such gray areas, Wiener said, “it can come down to who the judge or judge thinks.”

Streaming service Netflix late last month settled a copyright lawsuit against fans of Regency romance “Bridgerton,” who wrote and produced the “unofficial Bridgerton Musical” on TikTok.

In January 2021, a month after the Netflix show premiered, singer Abigail Barlow teamed up with musician Emily Bear to create her own interpretation of the hit series. In a neat version of fan fiction, the two women began writing and performing songs they wrote, often using specific dialogue from the series.

He was very successful on TikTok, in part because the pair invited feedback and participation by doing so crowd sourced artwork.

Netflix initially applauded the effort and even approved the recording of an album of songs. But when the creators took their show on the road and sold tickets, Netflix sued.

Producer and series creator Shondra Rhimes, in a statement released in July when the lawsuit was filed, said it “started as a fun celebration. [fans] intellectual property capture on social networks has become significant.’

Such cases turn on “fair use,” including how much someone appropriates from another’s work. Or that reduces the earning capacity of the original creator. In the case of “Bridgerton,” neither side has commented on the resolution of the case, but a performance of the musical at the Royal Albert Hall scheduled for last month was canceled.

Uncontrolled deviation is especially common in the relatively new field of NFT art.

“Nowadays, a 15-year-old can copy your work and spread it across the Internet like wild cat pee, at no cost and with little effort. An artist’s intellectual capital can be appropriated on an unimaginable global and massive scale by the people who wrote the copyright laws,” said John Wolpert, co-founder of IBM blockchain and various blockchain projects.

And the relatively new phenomenon of exchanging art NFTs for cryptocurrency “has created a perverse new incentive to misappropriate an artist’s work and claim it as your own and charge people to buy it,” he added.

In one of the NFT outfits that found their way to the courts, fashion giant Hermes sued LA artist Mason Rothschild when he created 100 NFTs depicting Hermes Birkin bags wrapped in fake fur.

Hermes filed a lawsuit in January in New York’s Southern District Court, alleging trademark infringement and reputational damage, citing “theft,” and Hermes sought summary judgment.

But in the past, courts have often held back from criticizing and parodying an artist. Rebecca Tushnet, a Harvard Law professor and expert in copyright and trademark law who represents artists, has argued that her “MetaBirkins” art project is inherently protected because it comments on the relationship between consumerism and the value of art.

Last month, the Central District Court of California ruled on a copyright lawsuit created by Instagram: Carlos Vila v. Deadly Doll.

In 2020, the photographer captured the image of model Irina Shayk. She was wearing sweatpants from fashion company Deadly Doll, which featured a large illustration of a woman holding a skull. The photographer licensed the image of the model for later reproduction. Deadly Doll posted Vila’s photo on his Instagram account and sued. They sued against it, arguing that it was infringing. The lawsuit detailed by plaintiff Moss on his Copyright Lately blog is ongoing in California.

Perhaps the most important case has nothing to do with new media: it concerns Andy Warhol’s altered photograph of the late artist Prince published in Vanity Fair magazine years ago. But it is expected to create a precedent.

Right now, the US Supreme Court is hearing this important case regarding Warhol’s misappropriation of photographer Lynn Goldsmith’s work on Prince screen prints. The judge will determine how and how much an artist or creator must transform a work to make it their own, guidelines that will create as much buzz as intellectual property itself.