Copyright & Artwork in Movies

What are the laws for using photos or art in movies and TV shows?

If the art appears very briefly or is shown for news or criticism, then permission may not be necessary. Otherwise, the permission of (and payment to) the artist is probably required.

Photos, paintings and sculptures often appear in movies and TV shows. If that artwork is contributing to the commercial enterprise, then, like the actors and crew, the artist should get paid. In these cases, a production assistant will usually contact the artist and ask for a license in exchange for payment.

However, if the use is very minor, or the artwork is very old, then permission and payment may not be needed under de minimis, fair use, public domain grounds.

SubjectMovie/TV ShowLegal test
PhotosSevenDe minimis
Photo of artRocObservable
SculptureThe Devil’s Advocate
ArchitectureBatman Forever
TrademarksDaniel Moore

The Artist

Who can give copyright permission?

Only the copyright owner can give permission. This is usually the artist (the photographer, painter, sculptor). Copyright is only transferred by written and signed contract (or by an act of law), which is rarely done. If the artist has died, then their heirs or estate should be contacted as copyright lasts for life plus 70 years.

Major artists often use agencies — artists’ rights companies — to handle permission approval.

Artists’ rights companies

Companies that represent the copyright interests of artists or their estates include:

If the artwork was bought, can it be used?

No. Purchasing a photo or painting does not provide any power over its copyright. The artist (photographer, painter, sculptor) or their representative should be contacted if permission is required.

“Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.”
17 USC §202

Case law: See Ringgold v. Black Entertainment Television, Inc., 126 F. 3d 70 - Court of Appeals, 2nd Circuit 1997

Can a museum, gallery or building owner give copyright permission?

No. They have property rights but not copyright (see above).

“Artists’ copyright is frequently misunderstood. Even if a painting (or drawing or photograph) has been sold to a collector or a museum, in general, the artist or his heirs retain control of the original image for 70 years after the artist’s death. … If someone wants to reproduce the painting — on a Web site, a calendar, a T-shirt, or in a film — it is the estate that must give its permission, not the museum.”
Patricia Cohen, The New York Times, April 24, 2012

Minor Use

How minor is minor?

The fair use exception to copyright law, and the de minimis provision of common law, allow unauthorized use for very small and incidental inclusions. But how minor is minor? There is no set definition but there are some guidelines.

Can art be shown without permission?

YesSix seconds
“Insubstantial use” of “virtually unidentifiable” artwork
De minimis
Seven
Sandoval
NoFour seconds
“clearly visible [and] recognizable”
Observable
Roc
Ringgold

De minimis

“Insubstantial use” of “virtually unidentifiable” artwork is not actionable

Seven

Seven
MediaMovie
Year1995
StarringBrat Pitt, Morgan Freeman
DirectorDavid Fincher
CompanyNew Line Cinema
CaseSandoval v. New Line, 1998
VerdictNo infringement (dismissed)

The 1995 movie Seven showed ten distinctive and copyrighted photographs without the photographer’s permission. They appeared “out of focus and displayed only briefly in eleven different shots” “for a total of approximately 35.6 seconds” with the longest shot lasting “six seconds.”

The court dismissed the photographer’s copyright infringement claim, ruling that the use was de minimis — too minor to merit an action.

“Because [the] photographs appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable, we find the use of those photographs to be de minimis.”
Sandoval v. New Line Cinema Corp., 147 F. 3d 215, 1998

“… where the unauthorized use of a copyrighted work is de minimis, no cause of action will lie for copyright infringement, and determination of a fair use claim is unnecessary.”
Sandoval v. New Line Cinema Corp., 147 F. 3d 215, 1998

“[when] the allegedly infringing work makes such a quantitatively insubstantial use of the copyrighted work as to fall below the threshold required for actionable copying, it makes more sense to reject the claim on that basis and find no infringement, rather than undertake an elaborate fair use analysis …”
Ringgold, 126 F.3d at 76

“To establish that the infringement of a copyright is de minimis, and therefore not actionable, the alleged infringer must demonstrate that the copying of the protected material is so trivial ‘as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying.’”
Sandoval v. New Line Cinema Corp., 1998 quoting Ringgold, 126 F.3d at 74

Observable

“Visible” and “recognizable” artwork in set design is infringement,
even if it is “incidental” and does not “encourage viewers to watch”

Roc

Roc
MediaTV show
Years1991–1994
StarringCharles S. Dutton, Ella Joyce
NetworksFox, BET
CompanyHBO, Warner Bros.
CaseRinggold v. BET, 1997
VerdictCopyright infringement
Not de minimis
Not fair use

A TV show featured, in the background set design for 26 seconds, a poster of a photograph of a quilt. The court ruled that the artwork was “plainly observable” and the use was more than de minimis and infringing.

The HBO sitcom ROC, produced by BET in which a poster of a photo of a quilt “was used as part of the set decoration.” The poster was “shown a total of nine times over 26.75 second with the longest shot of 4 seconds.

“Observability is determined by the length of time the copyrighted work appears in the allegedly infringing work, and its prominence in that work as revealed by the lighting and positioning of the copyrighted work.”
Sandoval v. New Line Cinema Corp., 1998 quoting Ringgold, 126 F.3d at 75

“[the artwork was] clearly visible [and] recognizable as a painting … with sufficient observable detail for the ‘average lay observer’”
Ringgold v. Black Entertainment Television, Inc., 126 F. 3d 70 - Court of Appeals, 2nd Circuit 1997 at 77

“The defendants have used Ringgold’s work for precisely a central purpose for which it was created — to be decorative. Even if the thematic significance of the poster and its relevance to the ROC episode are not discernible, the decorative effect is plainly evident. … The defendants have used the poster to decorate their set to make it more attractive to television viewers precisely as a poster purchaser would use it to decorate a home.”
Ringgold v. Black Entertainment Television, 1997

“… just as members of the public expect to pay to obtain a painting or a poster to decorate their homes, producers of plays, films, and television programs should generally expect to pay a license fee when they conclude that a particular work of copyrighted art is an appropriate component of the decoration of a set.”
Ringgold v. Black Entertainment Television, 1997

The court explicitly dismissed two oft-cited and key arguments:

“[That] the poster was ‘incidental’ to the scene and the defendants did not use the poster to encourage viewers to watch the ROC episode. The first point could be said of virtually all set decorations, thereby expanding fair use to permit wholesale appropriation of copyrighted art for movies and television. The second point uses a test that makes it far too easy for a defendant to invoke the fair use defense.”
Ringgold v. Black Entertainment Television, 1997

Sculptures

The Devil’s Advocate

The Devil’s Advocate
MediaMovie
Year1997
StarringKeanu Reeves, Al Pacino
DirectorTaylor Hackford
CompanyWarner Bros.
CaseHart v. Warner Bros., 1998
VerdictSettled after a “strong likelihood of success” for trademark infringement

The court ruled that the video release would be blocked due to a “strong likelihood of success” of trademark infringement. Although the case was settled before a court ruling, the movie company’s capitulation seemed to affirm the artist’s rights.

The movie included artwork based on a religious sculpture, Ex Nihilo, which turned into the devil. The movie’s significant use precluded de minimis and fair use defenses.

The artist filed for trademark infringement, anti-dilution and federal moral rights. He argued that his artwork was a “signature” work and was thus a trademark protected by the “likelihood of confusion” test; and the movie’s “inferior, distorted” use constituted trademark and trade dress infringement and trademark dilution. Under the Visual Artists Rights Act (Copyright), intentional distortions, modifications or mutilations of a work whichare prejudicial to the artist’s honor and reputation.

Hart, et al v. Warner Brothers, Inc, et al, 1998

Architectural Sculptures

“Decorative elements” that are “are part of the design plan of the building” are not protected from “pictorial representations”

Batman Forever

Batman Forever
MediaMovie
Year1995
StarringVal Kilmer, Tommy Lee Jones
DirectorJoel Schumacher
CompanyWarner Bros.
CaseLeicester v. Warner Bros., 2000
VerdictNo infringement due to architectural work exception to copyright law

The third Batman movie produced by Tim Burton included a building with four artistic towers. The producers got permission from the owners of the building but not from the artist, who sued for copyright infringement.

The court ruled that, because the sculpture was a decorative part of an “architectural work,”, the “public place/pictorial representation” exception to copyright protection [17 U.S.C. §120(a)] allowing the sculpture to be photographed and used without the artist’s permission. The court noted that this exception would not apply if the sculpture had been “conceptually separable” from the building.

“[Artwork] that is part of, but conceptually separate from, an architectural work can enjoy full copyright protection.”
Leicester v. Warner Bros., 2000

“… pictures taken of [artwork that is part of the design of a building] are not infringing pursuant to the exemption for pictorial representations of buildings in the Architectural Works Copyright Protection Act of 1990. 17 U.S.C. §120(a).”
Leicester v. Warner Bros., 2000

Trademarks

Artistically expressive use of trademarks

Daniel Moore Paintings
MediaPainting
ArtistDaniel Moore
CompanyNew Life Art
CaseUniversity of Alabama v. New Life Art, 2012
VerdictNo infringement due to architectural work exception to copyright law

Commercial art can include trademarks without violating trademark law since commercial paintings, prints and calendars are artistically expressive and protected by the First Amendment.On June 11, 2012, the Eleventh Circuit Court of Appeals ruled that photographer Daniel Moore can sell his photos of University of Alabama teams (with their trademarked uniforms) without violating trademark law since commercial paintings, prints and calendars are artistically expressive and protected by the First Amendment.

“[the photographer’s] paintings, prints, and calendars do not violate [trademark law] because these artistically expressive objects are protected by the First Amendment.”
— University of Ala. Bd of Trustees v. New Life, Inc, 09-16412 (11th Cir. 2012)

“… the First Amendment interests in artistic expression so clearly outweigh whatever consumer confusion that might exist on these facts that we must necessarily conclude that there has been no violation of the Lanham Act with respect to the paintings, prints, and calendars.”
— University of Ala. Bd of Trustees v. New Life, Inc, 09-16412 (11th Cir. 2012)

The Hollywood Reporter trumpeted this as a major win that “allows broad use of trademarks in artistic works.”

“An artistically expressive use of a trademark will not violate the Lanham Act ‘unless the use of the mark has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless it explicitly misleads as to the source or the content of the work.’”
— Judge Robert Lanier Anderson, University of Ala. Bd of Trustees v. New Life, Inc, 09-16412 (11th Cir. 2012), June 11, 2012.

The landmark case on balancing trademark and First Amendment rights is Rogers v. Grimaldi, 1989. Under the Rogers test, a trademark can be used when the use is:

  1. “artistically relevant to an underlying work”; and
  2. not “explicitly misleading” (it may be “ambiguous or only implicitly misleading”)

Law

What is the actual law?

In the U.S., there are several laws that pertain to the use of artwork in movies. These include:

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