By Hanna Feldman.
In the movie Notting Hill (1999), Anna Scott (Julia Roberts)’s grand romantic gesture of buying Chagall’s La Mariée (1950) for William Thacker (Hugh Grant) may not appear so romantic when you know that the painting is a fake. This is only one of the numerous instances where the producers have to obtain the rights to reproduce artworks.
Those savvy to the entertainment industry know that producers need to obtain a grant to use the copyright for underlying works – i.e. script, book, play, etc. – for adaptation in films, television shows, or other media. The underlying work might be a work “made-for-hire,” i.e. when a producer hires a screenwriter to write an original screenplay. In that instance, the screenwriter assigns all of the rights in the subsequent work to the producer. The rights that need to be obtained can differ based on the type of adaptation to be produced. For example, audio-visual rights are generally necessary for movie and TV adaptations.
However, unlike other underlying works wherein the creator usually permanently assigns their copyright to the production company, reproductions of an artwork in a film require a temporary license from the owner of the artwork’s underlying copyright, approving the use of the artwork in the film but not allowing the license to be freely assigned to other entities. The owner of the artwork’s copyright is usually, but not always, the artist while they are still alive, or the artist’s estate or foundation upon their death. The law itself is straightforward and governed by the Sonny Bono Copyright Term Extension Act of 1998 (17 U.S.C. §§ 301-02), which states that artworks generally enter public domain 70 years after the artist’s death. According to a 2018 Artsy article, “[u]ntil that time, artists or their estates retain the rights to the display and use of their work, and must clear any appearance in a film (artists generally retain their rights even if a specific work is actually owned by someone else).” However, even after a work is slated to enter the public domain, someone else may still retain the rights to the work, whether it’s the artist’s estate, a museum, photographer, or some other entity. Such a copyright holder, per the graphic below, has an exclusive right to:
The process of obtaining permission to include an artwork in an audiovisual work can be contentious and could potentially derail production if such permission is refused. For instance, a 2015 Chicago Tribune article describes the struggles of the “Woman in Gold” filmmakers in obtaining permission to include the crucial painting, Gustav Klimt’s “Portrait of Adele Bloch-Bauer I”, in the film since the underlying rights were owned by Neue Galerie in New York City and “securing them would have required lawyers and negotiations.” Luckily, the filmmakers found an Austrian art photographer, Manfred Thumberger, who happened to have taken “high-resolution photographs of Klimt’s . . . work just before it left the Belvedere Palace and Museum for the U.S. He owned the rights to the photos, and he was willing to sell them to the filmmakers for a few thousand dollars.” Implicit in this description is the filmmakers’ willingness to pay a few thousand dollars to Thumberger rather than undergo presumably more expensive, and more importantly, lengthy negotiations with Neue Galerie’s lawyers at a time in production when time is money.
Because of the stress and cost of obtaining permission from artists or their estates, production companies oftentimes hire local and emerging artists to produce works of a similar ilk to their desired piece. For instance, in the 2017 film Home Again, starring Reese Witherspoon, artist Catherine Booker Jones was commissioned to create a Rothko-esque painting. The tricky part is making the painting similar enough to resemble the desired well-known work without incurring copyright infringement.
Alternatively, film or TV productions can work with an organization such as Art for Film, which owns a catalogue of previously cleared artworks for rental or purchase. Such companies work with set decorators, production designers, and art directors to provide “hassle-free, clearable work for use as set dressing.” Hiring a local artist may be more demanding than obtaining clearances from the owners of the underlying copyright, but often these owners will charge hefty fees for a film to use the work and draw out the negotiations in the process, or deny the production company the right to use the artworks altogether. For instance, Julian Schnabel was unable to obtain reproduction approval from Jean-Michel Basquiat’s estate for Schnabel’s 1996 biopic Basquiat. Consequently, Schnabel created new works that were in the same artistic style, which Basquiat’s father objected to as they still violated the estate’s copyrights, but under the “derivative” rights afforded to artists. However, despite such blatant violations, Basquiat’s father decided not to sue.
As demonstrated above, some films have proceeded with using artworks that have not been approved and there have been cases where artists went forward with lawsuits and encountered success. Some notable lawsuits in recent years involved: a drawing by conceptual architect Lebbeus Woods in Devil’s Advocate (1995)[i]; a sculpture by Frederic Hart in Devil’s Advocate (1997)[ii]; and a replica on Ed Helms’ face of Mike Tyson’s tattoo in The Hangover Part II (2011)[iii]. It’s worth noting that all the above-referenced cases settled early on; the Devil’s Advocate’s settlement was the only one that mandated removal of the scenes from the video release of the film to avoid an enjoinder of the video release. Per a 2012 New York Times article, whether or not a film proceeds with using such a copyrighted artwork without permission can often be a judgment call made by the studio: “Given the money involved [in multimillion-dollar productions], filmmakers are sometimes willing to risk the expense of a lawsuit and penalties after the movie’s release.” Filmmakers may also recognize that artists and their estates can have limited funds and decide not to sue, as in the case of Basquiat’s father abstaining from filing suit against Schnabel.
There have been instances in which artists are unsuccessful in their copyright suits. In these cases, courts generally rely on a de minimis reasoning for rejecting their claims. A famous example is the use of ten copyrighted photographs in the movie Se7en, where the court held that the photos “appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable” and thus the use of the photographs was de minimis.[iv] (See above). Thus, artists generally have to examine the use of their works in films to see if the use surpasses the de minimis standard and would warrant bringing a suit. This forces artists to wait until films are released, and thus they cannot proactively prevent the unlawful use of their artworks through injunctions. Without that option, their only recourse is to seek monetary damages. Is that the price to pay for your 15 minutes of fame?
- Chernick, Kate. “How artwork gets into movies.” Artsy. March 2, 2018. https://www.artsy.net/article/artsy-editorial-artwork-movies
- Cohen, Patricia. “Art Is Long; Copyrights Can Even Be Longer.” The New York Times. April 24, 2012. https://www.nytimes.com/2012/04/25/arts/design/artists-rights-society-vaga-and-intellectual-property.html
- “Underlying rights.” CreativeFuture. https://creativefuture.org/creativity-toolkit/underlying-rights/
- Schlackman, Steve. “Creator or Buyer: Who Really Owns the Art?” Art Law Journal. January 28, 2015. https://alj.orangenius.com/visual-art-ownership/
- Knopper, Steve. “The art of getting permission to use art in film.” Chicago Tribune. April 2, 2015. http://www.chicagotribune.com/entertainment/movies/chi-woman-in-gold-art-20150402-story.html
- Werbin, Barry. “Using Creative and Architectural Works in Film and Media Productions.” Art & Advocacy (Vol. 23). October 2016. http://www.herrick.com/publications/using-creative-and-architectural-works-in-film-and-media-productions/
[i] Woods v. Universal City Studios, Inc., 920 F.Supp. 62 (S.D.N.Y. 1996).
[ii] Frederick E. Hart v. Warner Bros. (E.D. Va. Filed 1997).
[iii] Whitmill v. Warner Bros. Entertainment Inc., No. 11-cv-00752 (E.D. Mo. filed 2011).
[iv] Sandoval v. New Line Cinema Corp., 147 F.3d 215, 218 (2d Cir. 1998).
About the author: Hanna Feldman was a Summer 2018 Legal Intern with the Center for Art Law. She is a current 2L at Fordham University School of Law and has a special interest in Intellectual Property, Art, and Entertainment. She received her undergraduate degree at Grinnell College in Iowa and originally hails from Los Angeles. She can be reached at email@example.com.