New York Times reports the following:
“A Brooklyn photographer is suing the producers of the Broadway musical “Fela!” in federal court for copyright and trademark infringement, seeking at least $150,000 in damages for their use of her 1977 photograph of the legendary Nigerian nightclub of the Afrobeat musician Fela Kuti.
The lawsuit, filed Monday in Manhattan, argues that the “Fela!” producers did not seek or have the permission of the photographer, Marilyn Nance, to use the image of the nightclub, known as the Shrine, in a projection shown during the musical. Ms. Nance’s lawyer, Edward C. Greenberg, said in an interview that the image is used during 40 percent of the show and is rendered in a “Fela!” souvenir book.
“My client’s photograph of the Shrine becomes an iconic image during the musical, a key part of the set design, and we will ask the jury to uphold her copyright protections,” Mr. Greenberg said. . .”
You can certainly read the rest of the article but before you do, let’s address the key issues here raised by the alleged copyright and trademark infringements of Nance’s photograph. Actually, there is a stronger case for copyright infringement so my focus is narrowly tailored to that issue.
Hmm . . Where Have We Seen This Before?
Aha! Remember when two photographers sued Oprah in 1997 for ownership of 11images used in her fitness book? The suit was settled in 2000.
What Law Governs?
US Federal Copyright Law
Who Is the Owner of the Photo?
Nance given the facts and barring any evidence to prove otherwise.
What Does This Mean Under Copyright Law?
As the author of the work, Nance has the exclusive right to prevent others including FELA! Producers Jay-Z, Will Smith and Jada Pinkett (I know can you imagine?) from using the work without permission.
How Did Nance Create this Copyright?
Under the law, she created it the moment her work was “fixed in a tangible medium of expression.”
Ms. Uduak (As Some Call Me) Could you Please Speak English?
Sure. 
To create a copyright, Nance’s work MUST be: Original [creative intelligence] AND must be fixed in a concrete form of expression. For example, the picture at issue here. Ideas are not protected. It’s in your brain. Put it down on paper and now the law steps in to protect you.
Did Nance Have to Register Her Work with the US Copyright Office?
The NY Times article excerpted above indicates Nance did not register the work until FELA! began. 11nominations and 3 Tony Awards later, of course any lawyer, in their right mind, would tell Nance to register her work. Did she have to register the work? No. She took the picture and that triggered copyright protection.
What is the Significance of Registration?
- Puts the world on notice and gives legal presumption that her copyright is valid.
- To sue/bring her infringement action, she MUST register her work!
- It also makes it easy to sue & recover. For example, timely registration, within 3 months or even late registration within 5yrs of published work, strengthens her case when others infringe/violate her copyright(s).
- If she registered before her rights were infringed upon, she could recover up to $150,000 & possibly attorney fees when she sues.
- The icing on the cake, she doesn’t have to prove actual monetary damages.
Are There Criminal Consequences Associated With Copyright Infringement?
Yes. But I doubt Jay-Z or any of the producers will be doing time, anytime soon. The law does say, however, that if you knowingly and intentional infringe on another person’s copyrights, you can be fined and do time i.e. be locked up.
The Exciting Clip of FELA! Broadway by the FELA! Camp
Read Full Story here.
Photocredit: Monique Carbini
Cheers,
Uduak
We represent Ms. Nance.
Corrections to some of the world wide reportage concerning this case can be found at thecopyrightzone.com “Ya Never Know – Now On Broadway”.
Some points for your readers:
1. The image was colorized, cropped, altered and in some cases, projected in reverse;
2. Use was made in souvenir books, cd inserts, pr videos and music videos in addition to the extensive use in the production;
3. Ms. Nance is a well known African Scholar who was easily reachable having resided and worked in NYC for many years. No attempt to contact her to obtain a license was ever made by any of the defendants.
4 The work was fully credited to her in prior authorized uses in a book and museum displays BUT the production here credited the image to another photographer giving rise to a Lanham Act Claim for false attribution;
5/ Unauthorized use continued post filing of litigation.
The case is before Judge Stein in the USDC for the Southern District of New York. The complaint is available on line. No answer has yet been served.
Very truly yours,
Edward C. Greenberg, Esq.
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