Beyonce's Bikini Infringing On Copyrights?

from the oh-please dept

Mon, Feb 15th 2010 12:42pm — Mike Masnick

Michael Scott points us to a story over at IPKat about how singer Beyonce (or, rather, her label, Sony) is in trouble in Germany for infringing on the copyright of a designer due to a bikini she wore in a video. Seriously. In the US, we (for the time being, at least) still don't allow copyrights on clothing design, but apparently in Germany they feel differently about that sort of thing. Still, there are two disturbing aspects to this case. First, after ruling that the bikini infringed, the judge put an injunction on the entire video in Germany, though, since we're not in Germany, here it is:

But what's more troubling is the fact that the two bikinis really are not the same. Remember, copyright is supposed to be about the specific expression and not the idea. But that doesn't seem to be the case here. The two bikinis are obvious inspired by similar ideas -- or one was inspired by the other -- but the actual expressions of those ideas are quite different:

Finally, even if the bikini is infringing, shouldn't the problem be with whoever made the infringing bikini, not who wore it (or who paid for the video including someone wearing it)?

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: beyonce, bikini, copyright
Companies: sony music

50 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Pickle Monger (profile), 15 Feb 2010 @ 12:05pm

Priorities!
I've never been more greatful for copyright. Let's have Beoncé to take off the infringing bikini.
[ link to this | view in thread ]
Dark Helmet (profile), 15 Feb 2010 @ 12:48pm

Yay for puns...
1. If Beyonce in that bikini is wrong, then I don't want to be copyright....

2. In a filing of copyright case over a bikini, do you charge the plaintiff for indecent exposure if they drop the suit?

3. It seems to me that a lawsuit over a bikini is ridiculous from top to bottom....

4. Insert your creative pun here (or at least it would be creative, if only you had an expectation to be paid for it....)
[ link to this | view in thread ]
Innocent Bystander, 15 Feb 2010 @ 12:51pm

Re: Yay for puns...
My clever pun was removed due to a DMCA takedown notice.
[ link to this | view in thread ]
Anonymous Coward, 15 Feb 2010 @ 12:57pm

PAY ME!
[ link to this | view in thread ]
RD, 15 Feb 2010 @ 1:18pm

Not anymore
"Finally, even if the bikini is infringing, shouldn't the problem be with whoever made the infringing bikini, not who wore it (or who paid for the video including someone wearing it)?"

Not anymore. Much like the previous article on site links being infringing, copyright has become so unbalanced that now, ANYONE in the food chain gets sued, and ESPECIALLY the last person in the chain. So, the video poster gets it first, because they had the temerity to dare to take a picture of copyrighted material.
[ link to this | view in thread ]
Anonymous Coward, 15 Feb 2010 @ 1:21pm

Was that video designed to induce seizures? Seriously.
[ link to this | view in thread ]
Anonymous Coward, 15 Feb 2010 @ 1:22pm

Re: Yay for puns...
"2. In a filing of copyright case over a bikini, do you charge the plaintiff for indecent exposure if they drop the suit?"

That was awesome!
[ link to this | view in thread ]
AC, 15 Feb 2010 @ 1:25pm

Re: Yay for puns...
The bikini is infringing on my copyright and will need to be taken down immediately.
[ link to this | view in thread ]
Karl (profile), 15 Feb 2010 @ 1:31pm

Bikini madness
Unlike the U.S. (and most of the world), Germany actually does allow copyrights/patents on design rather than expression. Right or wrong (I vote wrong), it is the law.

The question is who actually made the garment. Did Sony buy it, or was it a one-off created for the video? There might be a case if it's the latter.
[ link to this | view in thread ]
Anonymous Coward, 15 Feb 2010 @ 1:34pm

Personally I wouldnt claim copyright for either and call my already questionable good taste into further disrepute!
[ link to this | view in thread ]
Cohen (profile), 15 Feb 2010 @ 1:41pm

The bikini Beyoncé wears looks very much like something someone put together after they saw the German one.

But it also looks like someone specifically put together to be similar to the German one but with enough changes as to make it different enough to pass a test in court.

This is very similar to what we used to do in advertising when we wrote a song that sounded very much like a popular song but was just different enough so that we didn't get killed in court.

However, our lawyers always warned us never to contact the original song's publisher for the rights to the pop song. They told us the courts might construe it was if we did contact the publisher and they quoted a high price to use the song, we created a knockoff to get away without paying the fees.

So Beyoncé's video staff might have contacted the German designer. Then, when they said no or wanted too much money, the video staff decided to go for a knockoff.

That's the kind of situation that starts to look bad for the video staff.

But Beyoncé has little to do with it.
[ link to this | view in thread ]
Dark Helmet (profile), 15 Feb 2010 @ 1:43pm

Re: Bikini madness
"The question is who actually made the garment. Did Sony buy it, or was it a one-off created for the video? There might be a case if it's the latter."

Why? They're both black/white and they both make use of seemingly random geometrical shapes, but that appears to be where the similarities end. There are, relative to bikini design as a whole, marked differences in general design and makeup of the fabric, and from what I can tell there are no repeated shapes.

So what's the issue here?
[ link to this | view in thread ]
Anonymous Coward, 15 Feb 2010 @ 1:46pm

Gawd, copyright is stupid.
[ link to this | view in thread ]
Sneeje (profile), 15 Feb 2010 @ 1:49pm

Could someone please remove that blonde haired troll from my beyonce video? She's infringing on my enjoyment.
[ link to this | view in thread ]
im a sue you, 15 Feb 2010 @ 1:57pm

wait a minute wasn't there an article about fashion not using copyrights?
OH so now they too are
so now we can :

pay the person who designs the cloths
there kids
and there grand kids

pay the persons putting them together
there kids
and there grand kids

and every time you want to wear said clothing YOU MUST PAY
there kids
and there grand kids
[ link to this | view in thread ]
pink floyd, 15 Feb 2010 @ 2:01pm

NOW apply this to hammers and pencils
and ill sue road builders that DONT PAY ME for every use of drawing schematics and using hte hammers

YES
PAY ME NOW
[ link to this | view in thread ]
Dave, 15 Feb 2010 @ 2:08pm

I am gaga over your ability to make good headlines!

You guys should get an award for that.
Beyonce + Bikini + Fringe = I'm There
[ link to this | view in thread ]
Todd, 15 Feb 2010 @ 2:15pm

Bikini/Copyright issue aside, is that video designed to cause epileptic seizures?
[ link to this | view in thread ]
Dark Helmet (profile), 15 Feb 2010 @ 2:15pm

Re: wait a minute wasn't there an article about fashion not using copyrights?
Can I make a request? Just a small favor at my behest?

If you're going to make your comment look like a poem,
Think up some rhymes and show 'em!

I won't comment on the spelling or grammar,
Though were it a crime, you'd get the slammer,

And yes, my own rhymes are lacking,
They're merely for ironic attacking,

But your comment looked like stanzas, it's true,
So you could have at least made them a haiku,

So in closing, I'll simply say this,
And I'll say it slowly, so it won't be missed,
Even for those that write poems like noobs,
Please do so in rhyme, when discussing Beyonce's boobs.
[ link to this | view in thread ]
Mike Masnick (profile), 15 Feb 2010 @ 2:27pm

Re: Re: wait a minute wasn't there an article about fashion not using copyrights?
Hmm. I was originally going to nominate your pun comment as comment of the day, but you may have just topped it.
[ link to this | view in thread ]
nasch (profile), 15 Feb 2010 @ 2:27pm

Re: Re: wait a minute wasn't there an article about fashion not using copyrights?
Well done sir, I award you 9.7 internets out of 10.
[ link to this | view in thread ]
Dark Helmet (profile), 15 Feb 2010 @ 2:30pm

Re: Re: Re: wait a minute wasn't there an article about fashion not using copyrights?
In the interest of brotherhood, I will gladly share the award with myself....
[ link to this | view in thread ]
Dementia (profile), 15 Feb 2010 @ 3:04pm

Re:
Somehow I doubt epileptic seizures was what they had in mind....
[ link to this | view in thread ]
Rasmus, 15 Feb 2010 @ 3:19pm

Re: Re: Bikini madness
In Sweden we have something called a protected pattern and is something you register for. It is very similar to a registered trademark in how it works legally. Things don't have to be an exact copy, just very similar, to be infringing.

I guess they have almost the same system in Germany.
[ link to this | view in thread ]
TW Burger (profile), 15 Feb 2010 @ 3:27pm

Re: Yay for puns...
Letterman's writing team could not do better (and may steal these - better copyright them).
[ link to this | view in thread ]
TW Burger (profile), 15 Feb 2010 @ 3:30pm

Re: Re: wait a minute wasn't there an article about fashion not using copyrights?
Helmet is in the zone! The Schwartz is with him.
[ link to this | view in thread ]
The Mighty Buzzard, 15 Feb 2010 @ 3:34pm

Re: wait a minute wasn't there an article about fashion not using copyrights?
As holder of the copyright on the word 'there', I demand all occurrences of said word be removed and replaced with the word 'their' in the above post.
[ link to this | view in thread ]
isthisthingon (profile), 15 Feb 2010 @ 3:48pm

Re: Bikini madness
>Right or wrong, it is the law.

Regardless of how you "vote" on this, just because something is the law doesn't make it good in any way. The law needs more correction in most countries than it claims to provide to the people within.

IP extremists have one thing that matters to them most: their hopes of having their turn amassing large amounts of money riding on an artificially imposed mini-monopoly that this corrupt system of elitist laws would provide them.

The term "intellectual property" is ridiculous on all levels and is supported by two kinds of people:

1. Those who don't realize what it does to the world
2. Those who do but care more about personal gain than the welfare of others
[ link to this | view in thread ]
isthisthingon (profile), 15 Feb 2010 @ 3:52pm

Re: Re: wait a minute wasn't there an article about fashion not using copyrights?
LOL!!!!
[ link to this | view in thread ]
otb (profile), 15 Feb 2010 @ 4:02pm

Bra(&panty)vo Dark Helmet!

::golf clap::
[ link to this | view in thread ]
isthisthingon (profile), 15 Feb 2010 @ 4:12pm

Re: wait a minute wasn't there an article about fashion not using copyrights?
Where kids? Where grand kids??
[ link to this | view in thread ]
Ryan Diederich, 15 Feb 2010 @ 7:06pm

The Real Question...
What happens if they win the lawsuit? Does sony pay the german folks because its against their law?

Can mohammad stone my wife because she showed her face in public?

Where does the reach of another country's laws end? Do they just block that video in Germany?
[ link to this | view in thread ]
ChurchHatesTucker (profile), 15 Feb 2010 @ 7:09pm

Re: Re: Re: Bikini madness
STOP DRESSING LIKE ME!!!

What is it with Nordics acting like twelve year old girls?
[ link to this | view in thread ]
Bas Grasmayer, 16 Feb 2010 @ 4:25am

Eh, not sure about this one. Noticed it ages ago, as did some blogs. I feel that she / her stylist kind of ripped off the designer by doing this... without proper attribution.
[ link to this | view in thread ]
ethorad (profile), 16 Feb 2010 @ 4:43am

Re: Not anymore
I would have said ESPECIALLY those with deep pockets (or perhaps those with deep enough pockets to make it worthwhile suing but not so deep that they can afford a better legal team than yours)
[ link to this | view in thread ]
Spaceman Spiff (profile), 16 Feb 2010 @ 6:28am

No such thing as a new idea...
I think the Picasso family should sue the both of them for infringing on Pablo's art...
[ link to this | view in thread ]
John Fenderson (profile), 16 Feb 2010 @ 6:37am

Re: Bikini madness
The US allows it as well -- it's called a "design patent".
[ link to this | view in thread ]
ChurchHatesTucker (profile), 16 Feb 2010 @ 7:16am

Re:
Did the German give attribution to the originator of the bikini?
[ link to this | view in thread ]
jb, 16 Feb 2010 @ 8:04am

design patents
Actually, the US does allow for design patents. They are not often used for clothing, since the fashion market moves so fast relative to the USPTO. And it's a mess to enforce in court. After all, isn't copying the most sincere form of flattery?

http://en.wikipedia.org/wiki/Design_patent
http://www.uspto.gov/web/offices/pac/design /desfaq.html
[ link to this | view in thread ]
Matt (profile), 16 Feb 2010 @ 10:41am

Re: Re: Bikini madness
This wouldn't even pass the sniff test for a US design patent infringement claim. Among other things, design patents do not protect against derivative works - as long as you are not practicing the protected design itself, you can be inspired by it to create a new design.

But I'm not sure I understand the claim that in the US we do not permit copyright on clothing design. What's at issue in this case cannot be the shape of the bikinis, because the shapes are totally different. So it must be the fabric design - the patterns and color choices. And fabrics most definitely _are_ protected in the US. And clothing design is typically also protected by trademark, if it acquires secondary meaning (surely a design as distinctive as this one has secondary meaning, at least to clothing insiders that form the primary market). Different penalties, same C&D.
[ link to this | view in thread ]
John85851 (profile), 16 Feb 2010 @ 12:14pm

Why sue Beyonce and Sony?
The answer should be obvious: because they have the deepest pockets and/ or suing them would make the biggest statement.
Sure, the people who designed and make the bikini are the real infringers, but there's no story in suing a swimwear-maker.
What does Sony have to do with Beyonce's video other than being the label? Did Sony execs approve the wardrobe or specifically tell her to wear a black and white bikini? Since when do record execs tell musicians what to wear in their videos?

Plus, to me, those two bikinis don't even look alike. They look similar, as if someone got the idea from the other one, but is that really enough to justify a lawsuit?

And does this mean that the original company can sue anyone who makes a similar black and white bikini? What's more troubling is that they feel they can sue anyone who wears the bikini as well!
[ link to this | view in thread ]
Karl (profile), 16 Feb 2010 @ 1:23pm

Re: Re: Bikini madness
The only issue is whether the similarities in design are found by a judge to be infringing.

Of course, cases like these just highlight how much "design copyrights" are a bad idea.
[ link to this | view in thread ]
Karl (profile), 16 Feb 2010 @ 4:17pm

Re: Re: Bikini madness
The term "intellectual property" is ridiculous on all levels and is supported by two kinds of people

Not necessarily. I'll give you two examples:

Say I recorded a song, and (by some miracle) hold the copyright to it. Now, a car company comes along and wants to use that song in an advertisement. But I don't want them to, for whatever reason (say they make weapons and I don't want to support that). Without copyright, how could I prevent them from using my song in their commercial?

The other example is "copyleft" licenses. Legally speaking, these are all copyrights. Without copyrights, the FSF (and others) would have no recourse to people who take free software and redistribute it as proprietary.
[ link to this | view in thread ]
BentFranklin, 16 Feb 2010 @ 4:41pm

I don't understand. Shouldn't the bikini designer be paying Beyonce? Nike pays Tiger.
[ link to this | view in thread ]
BIKINI TRUTH, 16 Feb 2010 @ 4:41pm

beyonce's bikini was def ripped off but it looks WAY BETTER than the original. If I was the german designer I'd be jealous...
[ link to this | view in thread ]
Andrew D. Todd, 16 Feb 2010 @ 11:10pm

Stolen Folk Art.
Take a look at:

Leni Riefenstahl, People of Kau (Die Nuba von Kau), 1976

The design in question is derived from traditional African folk costume, inclusive of body painting. The Nuba nation (South Sudan) can be considered collectively as the prior artist.
[ link to this | view in thread ]
crade (profile), 17 Feb 2010 @ 9:01am

I don't understand how the fashion industry can talk about copyrighting design with straight faces when every single one of them has their remade levi's jeans and slapped their brand on it.
[ link to this | view in thread ]
Derek Kerton (profile), 22 Feb 2010 @ 3:15pm

Re:
Induced something. Wasn't a seizure.
[ link to this | view in thread ]
Derek Kerton (profile), 22 Feb 2010 @ 3:20pm

Re: Re: Re: Re: wait a minute wasn't there an article about fashion not using copyrights?
Perhaps Techdirt can just offer you too of there awards. Their always saying copies are free! They're, I said it.
[ link to this | view in thread ]
Derek Kerton (profile), 22 Feb 2010 @ 3:22pm

Beyonce is no waif model, either. I think her bikini looks much better than the original, and the difference between the four is huge.
[ link to this | view in thread ]