An attack on King Kunta's Crown
On July 10, 2015, Giordano Cipriani filed suit against Kendrick Lamar for the infringement of Cipriani's "Blacker The Berry," photograph of a black woman breast-feeding a child. The complaint called for the court to award Cipriani damages associated with Lamar's profits he enjoyed as a result of the infringement, in addition to $150,000 for each time Top Dawg Entertainment used the photograph in media promoting the single. Check out the photograph below:
While the use of the image was reckless, at best, awarding a high damage amount could result in a perverse effect against the integrity of copyright law.
Federal copyright law prohibits the commercial use of another's originally authored content without the author's permission. 17 U.S.C. § 102. The law's intent is to promote the intellectual property associated with the ideas, expressions, and content authors create. There is less of an incentive to create and progress if the author cannot control its dissemination and profit from the work.
This is increasingly problematic for the reproduction of images that are easy to Google. Somewhat relatedly, check out Donald Trump's latest stock image blunder when he used an image of SS soldiers in a campaign advertisement. Esh.
Lamar needed to conduct due diligence prior to using the work should the allegations be true; however, a harsh judgment against Lamar would undermine the intent of copyright law. The use of the picture in the album artwork is undisputedly commercial. A more interesting question, though, is to what extent, if any, did Lamar profit from that infringement. I sincerely doubt too many people will base their decision to purchase the album or single (the picture is used to promote a single record off the album) on the basis of the artwork. More likely is the case that people will purchase the album once released based on Lamar's talent. The use of the art conversely provided a widespread dissemination of the work Cipriani has probably never seen.
That doesn't make it right, for sure; however, it does question the sincerity with which Cipriani brings the claims. For one, the way such occasions usually work is the author will seek an injunction to prevent further dissemination. Lamar's use of the work undoubtedly caught Cipriani's attention prior to the filing of this law suit. (Lamar released the single in February). The case will likely settle, but a harsh judgment against Lamar would allow Cipriani to profit from Lamar's publicity and popularity - publicity and popularity, by the way, Lamar obtained through his own copyrighted content.
It's so easy to take an image off Google or search engines and incorporate it into your own content. This example points out the necessity in performing due diligence and asking for permission if it's another's work.