Cultural Insanity: You Can't Show A Painting In A Movie Without Paying The Copyright Holder

from the this-makes-no-sense dept

The NY Times has an article about yet another ridiculous bit of copyright law, the fact that moviemakers have to license artwork, even if they own the physical piece to show it in a movie. And it gets even worse, when you find out that the ridiculous position of the Artists Rights Society (think the RIAA/MPAA for artists) is that the newly released 3D version of Titanic needs a new license, because its use of artwork is somehow not covered by the original license:
It is there in the new 3-D version of “Titanic,” as it was in James Cameron’s original film: a modified version of Picasso’s painting “Les Demoiselles d’Avignon” aboard the ship as it sinks.

Of course that 1907 masterpiece was never lost to the North Atlantic. It has been at the Museum of Modern Art for decades — which is precisely the reason the Picasso estate, which owns the copyright to the image, refused Mr. Cameron’s original request to include it in his 1997 movie.

But Mr. Cameron used it anyway.

After Artists Rights Society, a company that guards intellectual property rights for more than 50,000 visual artists or their estates, including Picasso’s, complained, however, Mr. Cameron agreed to pay a fee for the right to use the image.

With the rerelease of “Titanic,” the society wants Mr. Cameron to pay again, asserting that the 3-D version is a new work, not covered under the previous agreement.
Of course, I recognize that ownership of the image is different than holding the copyright in the image -- though I'm a bit surprised that most art purchases don't include a copyright assignment or at least a permissive license as well. But it strikes me as ridiculous that the use of such images in a movie -- especially in passing -- isn't a clear case of fair use. This highlights the ridiculousness of the "permission-based society" we live in, where even if you own something, you don't really own it.

Why do we let this kind of craziness happen? Why don't we, as a society, stand up and point out that it makes no sense. If you have possession of the painting, why shouldn't you be allowed to use it in a movie? Even if you don't have the painting. How is having that painting in the movie, in any way, harming the economic value of the painting? The answer is that it is not. If anything, it's increasing the prestige and value of the painting... and it's doing all of that for free.

Think of it in a slightly different context. These days, when other products are seen in movies -- like a can of Coke, for example -- it's often there because of product placement. That is, the provider paid for it to be in the movie. Couldn't you make an argument that artwork that shows up in movies gets the same sort of benefit of the attention of the moviegoers? Why is it, then, that filmmakers are expected to pay a license to have the artwork, but get paid to have the Coke can?

Filed Under: 3d, artwork, fair use, licensing, moma, picasso, titanic


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  1. icon
    TimothyAWiseman (profile), 26 Apr 2012 @ 1:24pm

    This time it makes sense, sometimes

    This time, I must respectfully disagree. A piece of visual art is precisely that, and often created, at least in part, with the intent to monetize the ability to view that art. Buying a copy is very different from purchasing a license to use it by visually representing it. And with a painting, its value is largely in the ability to see a visual representation. I think there is, in general, a valid right for the artist to be compensated for its inclusion in a movie since then the movie viewers see the art which is its primary value.

    Now, some artists, especially ones not well established, might well offer their work for free or even pay to have it included in a movie for exposure, but that is the artist's right and not something to be assumed. And this is very different from a can of coke because with coke the value is in drinking it, not in seeing it.

    There are other reasons that this particular case might not make sense, but not the reasons you list. For one, I believe our copyright term is too long and something from 1907 should be in the public domain now, but until that law is properly changed it is still in copyright. I also note that a license fee was already paid, but whether or not that covers this version is precisely the heart of this case so the court will decide it. Also, there might be a fair use claim especially for art that is not significant to the movie and shown only in passing.

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