A murky area of copyright law relates to the availability of “reputational damages.”
Typically, copyright claims arise when an author prepares a creative work, and that work is used by another without permission. U.S. copyright law clearly protects unauthorized copying of the work. But what about the possible harm to the creator’s reputation related to this unauthorized act?
This question was presented in a recent lawsuit involving a music video from the movie Black Panther, a film that is familiar to the millions of fans of the Marvel Cinematic Universe. Black Panther was massively successful in theaters, grossing over $700 million in the United States and $1.3 billion worldwide.[1]
In Viktor v. Top Dawg Entertainment LLC et al., the music video for All the Stars, by Kendrick Lamar and SZA, was alleged to infringe paintings based on ancient Egyptian and African symbolism by an artist named Lina Viktor.[2] Viktor had created distinctive gold leaf on black paint paintings, and alleged that the music video shows unauthorized copies of her paintings in a 19-second clip that can be seen at the 3-minute mark of the video. In addition to damages based on the defendants’ profits, Viktor also sought relief because the infringement allegedly harmed her reputation.
Some context may be helpful in order to understand the basis for Viktor’s reputational damage claim, and the viability of a claim for reputational damages in a future copyright action. While many countries have recognized an author’s “moral rights”—certain non-economic rights personal to the author that are expressed through the author’s creative work—U.S. Copyright law has been slow to do so.
In 1928, a revision to the Berne Convention added an article protecting an author’s right of attribution and integrity.[3] Over 60 years later, the U.S. acceded to the Convention, but explicitly rejected the expansion of any moral rights, claiming that existing copyright and trademark laws were sufficient to protect these rights.
In 1990, Congress passed the Visual Artists Rights Act (VARA), codified at 17 U.S.C. §106A. VARA provides authors of qualifying works with two protectable moral rights: the right of attribution and the right of integrity. However, the scope of VARA is quite narrow and only applies to specific works of visual art as defined by the Copyright Act. This includes original or limited edition paintings, prints, drawings, sculptures, and exhibition photographs, and explicitly excludes any poster, map, globe, chart, … motion picture or audiovisual work, book, magazine, etc.[4] Thus, the creator of a qualifying work can rely on VARA to protect against misattribution, modification, and destruction of the work, unless an exception applies such as work for hire or fair use.
Upon this backdrop, courts are left to determine if the Copyright Act provides any protection for moral rights beyond the narrow rights provided in VARA. In Viktor, the parties agreed that VARA was not applicable. Instead, the artist looked to the infringement remedies identified in the Copyright Act to support her argument for reputational damages. She argued that harm to her reputation had reduced the value of her work, and that harm was recoverable as “actual damages suffered … as a result of the infringement.”[5] The court appeared skeptical of this claim, noting that “the Copyright Act … does not by its explicit terms provide for reputational damages.”[6]
Nonetheless, the court considered the limited authority offered in support of reputational damages, primarily the case Pavlica v. Behr, which is far from definitive. Pavlica theorized that a plaintiff might be able to establish reputational injury, or a similar claim for loss of goodwill, if non-speculative evidence could be found to support such a claim.[7] Importantly, the Viktor court was evaluating the reputational issue pre-discovery, and therefore ruled against dismissing the claim when it was “entirely abstract.” The case was subsequently settled, so Viktor can only serve to tell us that a reputational damages claim may survive an early dispositive motion.
Indeed, there is an inherent tension between the explicit terms of the Copyright Act and VARA, and the implicit reputational harm claim pursued in Viktor. One the one hand, there is the vague representation that the Copyright Act already protected some moral rights prior to VARA, so perhaps those rights included protection to reputation. On the other hand, Congress provided a narrow set of specific rights when enacting VARA, and that clearly does not cover the harm alleged in Viktor.
So, it is perhaps a reach to support a reputational claim based only on implication. This was precisely the point made by Judge Easterbrook when considering the scope of the Copyright Act in view of VARA: “It would not be sound to use § 106(2) to provide artists with exclusive rights deliberately omitted from the Visual Artists Rights Act.”[8]
The question remains as to whether reputational harm is recoverable via the Copyright Act. Can a party pursue such a claim outside of VARA? Perhaps, as Viktor kept the door cracked slightly, but the opening remains thin.
- See “Box Office Mojo” for Black Panther.
[Back to reference] - No. 18 CIV. 1554 (PAE), 2018 WL 5282886, at *1 (S.D.N.Y. Oct. 24, 2018).
[Back to reference] - Berne Convention for the Protection of Literary and Artist Works art. 6bis(1), Sept. 9, 1886, as revised June 2, 1928. (“Independently of the author’s copyright, and even after the transfer of the said copyright, the author shall have the right to claim authorship of the work, as well as to object to any distortion, mutilation or other modification of the said work which would be prejudicial to his honor or reputation.”)
[Back to reference] - See 17 U.S.C. §101 (definition of “work of visual art”).
[Back to reference] - See 17 U.S.C. §504(b) (Viktor cited Fitzgerald Pub. Co. v. Baylor Pub. Co., 807 F.2d 1110, 1118-19 (2d Cir. 1986) for this proposition).
[Back to reference] - Viktor at *3 (S.D.N.Y. Oct. 24, 2018).
[Back to reference] - Id. at *3-4.
[Back to reference] - Lee v. A.R.T. Co., 125 F.3d 580, 582 (7th Cir. 1997).
[Back to reference]