Underlying Rights to Artworks in Movies: Who’s Got the Power?

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: