#BrandInfringement (TM) in the News: Erykah Badu & Flaming Lips Video + the issue of “Creative Control”

What happened


Parties Erykah Badu, Wayne Coyne, and the Flaming Lips and Heady Fwendship

The Occasion:  The Flaming Lips wanted to do a remake and video of “The First Time Ever I Saw Your Face” featuring Ms. Badu.

The Deal Video concept was tentatively approved by Ms. Badu.  Due to some the requested video shots, Ms. Badu had her sister, Nayrok, be her body double.  Video was shot.  Ms. Badu was shown initial still images via text message.  Ms. Badu tentatively approved, reserving the right for final review and approval of the final cut prior to release to the public.

Deal Broken Just a few days after the text messages, Ms. Badu learned that the finished product had been released without her final viewing and approval.  Her fans went crazy.  In a bad way.  To sum up their comments and sentiments, they couldn’t believe their Erykah would put out such a meaningless, pointless video.  Erykah is and has always been known for releasing thought provoking videos and music that leans heavily on political activism and rhetorical criticism.

Ms. Badu’s reaction:  Reports say she attempted to privately discuss the matter with Wayne Coyne and the Flaming Lips but that they insisted there was no problem; it was ‘art”. Ms. Badu then addressed her fans.  Here is the infamous tweet from Erykah.

The Video:  It is available online.  If you want to see it bad enough, you can search for it. WARNING:  IT CONTAINS GRAPHIC IMAGES.  DON’T OPEN IF YOU ARE AT WORK, ON A PUBLIC COMPUTER, OR IN THE PRESENCE OF CHILDREN.  For personal reservations, I wont repost.  I will give a description, though.  In the video, Badu sits naked in a bathtub singing the airy lyrics, looking possessed or out of her right mind interrupted by shots of her little sister Nayrok getting deluged from head to toe – completely naked –  by a thick, red bloody like mixture, a liquid corn starch, gold glitter, and a thick milky substance that resembles  male secretions.  The footage of Nayrok completely exposes her nakedness – her breast, buttocks, genitals – and has footage of Nayrok smacking or groping these areas with the various substances and mixtures in slow motion.

Why this is brand infringement 


What is creative control/artistic control?  Wikipedia provides a good definition:  “Artistic control or creative control is a term commonly used in media production, such as movies, television, and music production.  A person with artistic control has the authority to decide how the final product will appear.”  (Thanks Wikipedia!)

Why is it important to artists?  To recording labels and key industry peoples?   Because!  Who ever has the final say on how the final product will appear has to power to influence EVERYTHING!   Each person in collaboration has a different vision.  Whoever has control over artistic direction will get to see their vision in the final product.  And where there is a different vision…there will be a different outcome.

See what I mean?

So….when there in an agreement, oral or written, between two collaborators as to who has the right of creative control….and someone decides to breach that clause…we usually get a situation just like Erykah and Flaming Lips.   Erykah clearly believed she had creative control over this video.  Reports demonstrate that she was a fan of the creativity of Wayne Coyne and the Flaming Lips and didn’t want to interfere with their creative processes.  However, by stating that she had to approve the final cut – and by Wayne Coyne’s agreement – Erykah arguably had exclusive control on how the final product would look.

And based on what I saw in the video…I can definitely see why she wanted to review prior to publication/distribution.  Yuk.

Where there is a different vision…there will be a different outcome.  And when people breach creative control clauses, sometimes that outcome can make an artist look bad.  Crazy even.   Hypocritical.  Confused.  And when that outcome breaches, violates, disparages, defames, encroaches, or dilutes the brand that the artist has built with the general public and their fans…that’s #brandinfringement and assuming there are damages, it’s lawsuit worthy.

Assuming this wasn’t a publicity stunt, Ms. Badu, I’d forego the tweeting and get to cease and desisting.



Note:  While oral agreements can be enforceable in court, creative control clauses should definitely be in writing.  Writings seem to make people think twice before breaching since they know they can’t create a defense based on good ol’ “he said, she said”.

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