You Used to Copy Me in Your Videos

Drake’s recent music video for his song “Hotline Bling” is of note for more than the exceptional dance moves Drake displays therein. A mere three days after the video was released, renowned contemporary artist James Turrell released an artfully worded statement indicating that he was in no way involved in the creation of the video: “While I am truly flattered to learn that Drake f*cks with me, I nevertheless wish to make clear that neither I nor any of my woes was involved in any way in the making of the Hotline Bling video.”
As of November 15, the video has been viewed over 85 million times. Countless memes have been created (mostly parodying Drake’s dancing). Saturday Night Live monopolized on the trend and produced its own parody of the video, which happened to feature presidential nominee, Donald Trump. Millennials were flocking to art galleries or creating their own spaces to emulate Turrell-esque backdrops for their own rendition of the video. Moncler saw spikes in the sale of the particular model and color jacket Drake wore throughout the video. Needless to say, the video was of “break the internet” caliber.

Anyone moderately familiar with Turrell’s work would have immediately noticed the striking similarities between the light-filled spaces that served as the backdrop for Drake’s dancing and the general impression of Turrell’s light sculptures, let alone the (arguably clear) allusions to specific works. A side-by-side comparison of stills from the video and Turrell’s works is available here. Those familiar with famous musicians caught up in copyright infringement actions for their music videos likely conjured up the facts of the LaChapelle suit against Rihanna for her music video of her song “S & M.”
Photographer David LaChapelle, a self-proclaimed friend of Rihanna’s, sued her based on a number of similarities between her video and a number of his photographs. Like with Turrell, anyone familiar with the work of LaChapelle would have seen his influence in the video before needing to turn to the specific images at issue. A side-by-side comparison of stills from the video and LaChapelle’s works is available here. The case was ultimately settled. However, the court’s denial of the defendants’ motion to dismiss with respect to the copyright claim suggests that LaChapelle would have likely won on at least some of the copyrighted photographs at issue.
Turrell stated that he did not want to deal with the “headache” of a copyright infringement suit, but as a threshold matter, we might ask whether he could expect those claims to be successful. As encapsulated in Turrell’s response to the video, it would not be too hard to establish, through circumstantial evidence, that Drake actually copied from Turrell. In February 2014 Drake went to visit the Turrell retrospective at LACMA where he acknowledged the influence Turrell had on his recent tour, shortly followed by his statement: “I fuck with Turrell,” which would later be (amusingly) repeated by Turrell. The substantial similarity between the video and Turrell’s works, on the other hand, might present a more difficult question. As courts in the past have struggled with determining the “expression” embodied in a photograph, one might expect the medium of light to be equally challenging to a modern audience. We might compare the works of artist Dan Flavin, who also works with light: Flavin’s light sculptures take a physical, tangible form through the display of the florescent bulbs that make them up. Traditional notions of art align with the presence of a tangible form (even if there’s more to the work than just that). Turrell’s light installations play off the existing spaces he displays them in and in many cases do not have a tangible form. He often incorporates natural light into his work and plays off it with his own insertion of artificial light. Perhaps it would be difficult to find originality in some of Turrell’s work, but it would also not be surprising if a court were to find that Drake infringed upon “Twilight Epiphany” and “Amrta” in particular.
A doctrinal inquiry into the viability of a copyright claim may not actually be the appropriate focus in this instance. Regardless of whether or not Turrell could succeed on a copyright claim, it might be more instructive to look at what the best response to the video would be as an artist and individual living in such a meme-soaked social media-dominated world. The reaction to this video is a testament to Drake’s popularity—Turrell might not want to deal with the backlash that would come along with litigating against Drake. And from a positive perspective, Turrell might want to take advantage of the exposure that the video offered him. Indeed, his incorporation of Drake’s signature language into his published response to the video shows that Turrell was taking steps to embrace the attention he was receiving from this previously unfamiliar audience. While the essence of a copyright suit gets at the feeling of an artist being ripped off, perhaps Turrell instead chose to view the video as an homage from someone who is clearly a fan of his work.
 
 
Katharine Haydock is a J.D. candidate, 2017, at NYU School of Law.