Photographer Sues Broadway's "FELA!"

Tuesday, Jul 27, 2010  |  Updated 8:45 PM EDT
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Photographer Sues Broadway's "FELA!"

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The image has been in use for the last two years, according to a spokesperson for the show.

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The past really is coming back to haunt Fela.

A photographer is suing the production company for the Broadway musical “FELA!” for using a 1977 picture she took as a backdrop in the show.

Brooklyn-based photographer Marilyn Nance is claiming a photograph she took of the late musician Fela Kuti’s Nigerian nightclub is being projected without permission “onto or above” the stage.

"This is egregious," said her attorney Edward C. Greenberg. "They merely should have contacted her."

The musical -- in which the title character's murdered mother speaks to him from beyond the grave -- has been using the image for two years, said Billy Zavelson, a spokesperson for "FELA!"

Nance is seeking more than $150,000 in damages in the lawsuit she filed in Manhattan’s federal court last month, but ultimately the amount of compensation is in the jury's hands. In the complaint Nance alleges that the image was used during 40 minutes of the June 27th performance of “FELA!”

Other items like $10 souvenir program books, and the inserts that come with $25 CD recordings and a promotional music video include the image, according to the lawsuit. Greenberg noted that in one use of the image the names of the show's producers, Jay-Z, Will Smith and Jada Pinckett-Smith, are written on top, adulterating Nance's work.

 "Unfortunately the photographer let two years pass before voicing an objection to the use and making an excessive money demand," said Zavelson.

Nance did not know that her work was being used in the production for so long because she didn't go see the show until last month, said Greenberg, but as soon as she found out she took action.

"They have continued to use the image since we notified them," said Greenberg.

In a promotional video for "FELA!" a book which attributes the image to Nance is referenced. As a well-known scholar on the African Diaspora, producers could have easily reached her in Brooklyn to request permission to use the image, said Greenberg.

While Zavelson said the show is in the process of removing the image, he added, "We believe her claim is without merit. Copyright law doesn’t allow photographers to control images of public buildings with historic and cultural significance, and the projection did not incorporate any original elements of the photograph in question."

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