Kanye West being sued over an uncleared sample is a pretty common occurrence, but this latest litigation is a little bit different because it’s a paparazzi agency doing the suing.
The lawsuit is over the 2024 collaboration between West and French Montana, ‘Where They At’, which opens with an audio clip from 2013 in which West is heard lashing out at a paparazzo shouting, “don’t take a fucking nother photo, man!”
The video from which that clip was taken is owned by celebrity photo agency Bauer-Griffin, which now claims that its copyright in the video was “flagrantly and deliberately” infringed by the uncleared sample when ‘Where They At’ was released as part of French Montana’s ‘Mac & Cheese 5’ mixtape.
The “volatile confrontation” between West and a paparazzo captured in the video was, according to the agency’s lawsuit, “part of a long history of Mr West skirmishing with paparazzi over perceived violations of his privacy and his desire to be left alone”.
Which means it “received extensive media attention in May 2013, when the event it depicts occurred, and was widely featured and reported in news and entertainment media”.
“Without permission or licence, or credit to the video’s author or rightsholder”, the lawsuit goes on, West and French Montana - real name Karim Kharbouch - and their distributor Gamma, “purposefully copied the audio sample and used it prominently as the infringing record’s intro”.
Whatever your opinion of the paparazzi and the tactics they employ to photograph celebrities on the street, the copyright in any photos they take belongs to the photographer or any agency they work for.
Which means if a celeb wants to stop the distribution of an image they can’t rely on copyright law, because they are not the copyright owner, and they would have to try and block distribution through something like privacy law or personality rights.
Meanwhile, if the celebrity wants to use an image in which they appear, they need to get a licence from the relevant photographer or agency, even though the value of the image is usually connected to their fame. Various pop stars have been sued over the years for posting paparazzi photos to their own social media without getting permission.
By the same logic, West and Kharbouch should have got permission before using a clip from the Bauer-Griffin owned video as a sample at the start of ‘Where They At’ - unless they can construct some kind of ‘fair use’ defence under US copyright law given the nature of the clip.
Interestingly, the copyright in Bauer-Griffin’s video was only certified by the US Copyright Office in January this year, despite the video being published in 2013.
The agency may well have registered the work late last year in preparation for this litigation, as generally a work needs to be registered in the US before an infringement lawsuit can be filed.
Because registration happened after the alleged infringement - ie the 2024 release of ‘Where They At’ - Bauer-Griffin won’t be able to seek statutory damages or attorney costs as part of its action. But it can still claim actual damages, ie damages connected to the profits West, Kharbouch and Gamma made from the alleged infringement.