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?


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    DandonTRJ (profile), Apr 26th, 2012 @ 1:05pm

    In the eyes of the copyright holder, it's a question of whether the product adds value to the movie. Presumably, a can of Coke isn't doing anything other than creating brand recognition for itself, so the primary benefit of its inclusion is not to the film. Artwork, on the other hand, adds an aesthetic appeal to a scene, which is why the filmmaker proactively seeks its use. After all [to use the article's example], if the primary benefit wasn't to Cameron, why would he use the painting without permission and open himself up to liability? The nature of the economics suggests that the primary value is to the filmmaker in such a scenario. Extrapolating out from what you're suggesting, though, *any* use of one copyrighted work (that you've purchased a copy of) within another work is product placement and shouldn't need permission. A novel theory, but not the way copyright is structured today.

     

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      DandonTRJ (profile), Apr 26th, 2012 @ 1:15pm

      Re:

      (Beyond that, though, the problem isolated in the article is just the mechanical result of the copyright system. Any exercise of a Section 106 right pertaining to a copyrighted work -- reproduction, distribution, adaptation, public performance, public display -- is presumed to require permission from the copyright holder unless an exception can be found in statutory/case law. In particular, you'd be looking at the first sale doctrine, which short-circuits the distribution and public display rights for artwork. Essentially, you are arguing for the first sale doctrine to also eliminate the adaptation right, which currently requires de minimus use or fair use to be mitigated. Again, a novel theory, and perhaps one worth discussing, but I'm not sure there's as strong a rationale for it when compared to existing exceptions.)

       

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        RonKaminsky (profile), Apr 26th, 2012 @ 3:48pm

        Re: Re:

        Laws which work mechanically are unlikely to be respected.

        Even more bizarrely, given the wording of the US copyright act, it would seem that if one buys a painting in Europe, one still needs the permission of the rightsholder to bring it back home (import it) to the US.

         

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      jupiterkansas (profile), Apr 26th, 2012 @ 1:26pm

      Re:

      You are right, of course. The Titanic example is at one extreme end of copyright law, and what you present is at the other extreme end.

      There is something absolutely and horribly ridiculous in the idea that in 2012 you have to pay to show a 1907 painting in a film by an artist that died in 1973.

      Any law that allows such a situation to arise needs to be fixed.

       

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        Joseph Kranak (profile), Apr 26th, 2012 @ 7:48pm

        Re: Re:

        But what incentive would Picasso have to paint the painting if he'd known that his children wouldn't be able to collect a fee for the brief appearance of the painting in a 3d re-release of a successful movie 105 years later? You're robbing the painters of their incentive to create!

         

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      Anonymous Cowherd, Apr 26th, 2012 @ 1:48pm

      Re:

      No, in the eyes of the copyright holder, it's a question of whether they can get away with demanding money for it. Which, after the movie is already out, they almost certainly can. If a coke can was visible in some corner of the screen for 1 frame and the filmmaker didn't licence it, they'd get sued.

      As ridiculous as it sounds, movie studios actually have lawyers watch the footage frame-by-frame to spot these.

       

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      JMT (profile), Apr 26th, 2012 @ 2:16pm

      Re:

      "After all [to use the article's example], if the primary benefit wasn't to Cameron, why would he use the painting without permission and open himself up to liability? The nature of the economics suggests that the primary value is to the filmmaker in such a scenario."

      Cameron totally benefited from putting this painting in Titanic! Way back in '97 when I heard the exited chatter that Picasso’s “Les Demoiselles d’Avignon” would be featured in the film I rushed out to see it. Twice! I would never have bothered otherwise, it was the film's only redeeming feature (other than Kate's boobs of course). Then just a few months ago when I heard a 3D version was being released I was overjoyed, and not just because of the 3D boobs! Finally I'd be able to see “Les Demoiselles d’Avignon” again! Because there's no other way to see this painting, right?


      Yeah, sarc...

       

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    weneedhelp (profile), Apr 26th, 2012 @ 1:06pm

    Ha ha

    They will soon look back and wish for the day when a movie only cost 300 million.

     

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    Anonymous Coward, Apr 26th, 2012 @ 1:10pm

    made in 1907, out of copyright anyway?

     

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      Ted, Apr 26th, 2012 @ 7:01pm

      Re:

      To the people saying that it is out of copyright, that is not necessarily true (although the idea that it is under-copyright till 2043 is flat wrong)

      Normally, published works before 1923 are in the public domain. BUT, in this particular case, Picasso held on to the painting until 1924 before selling it.

      Therefore, assuming he registered it within 5 years of selling it, it would have a copyright term of 95 years from publication - meaning that it will not expire until 2019.

      tl;dr: copyright will not expire until 2019.

       

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        Erik, May 15th, 2012 @ 9:08am

        Re: Re:

        thanks for clarifying. I need to answer this issue for an assignment, and have yet to fully figure it out. can you please provide a source for this?:

        Normally, published works before 1923 are in the public domain. BUT, in this particular case, Picasso held on to the painting until 1924 before selling it.

        Therefore, assuming he registered it within 5 years of selling it, it would have a copyright term of 95 years from publication - meaning that it will not expire until 2019.

         

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    Chosen Reject (profile), Apr 26th, 2012 @ 1:13pm

    Here is my answer to all of those questions...

    Nineteen oh freaking seven?! And we're discussing copyright?

    What!

    The!

    Hell!

     

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      PaulT (profile), Apr 27th, 2012 @ 1:45am

      Re: Here is my answer to all of those questions...

      In the eyes of these people, Cameron's probably just lucky that White Star Line's successors can't claim copyright of the design of the ship as depicted on film (or, at least, I don't think they can...)

       

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      Taemyr, Apr 27th, 2012 @ 2:45am

      Re: Here is my answer to all of those questions...

      The movie was released worldwide. So it had to deal with copyrights lasting the life of the author +70 years. Picasso died in 1973 so the copyright would expire in 2043.

       

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    RD, Apr 26th, 2012 @ 1:14pm

    1907....uh?

    Um...1907 anyone? That is clearly and in any way possible out of copyright, even in the fevered dreams of the most extreme Copyright Maximalist.

     

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      DandonTRJ (profile), Apr 26th, 2012 @ 1:18pm

      Re: 1907....uh?

      From the article:
      So while MoMA owns the actual canvas of “Les Demoiselles,” the family of Picasso, who died in 1973, still owns the image. And under existing law, the estate will continue to own the copyright until 2043.
      Ridiculous, yes. But such is the state of copyright.

       

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      Rob, Apr 26th, 2012 @ 1:18pm

      Re: 1907....uh?

      Nope.

      He died in 1973, meaning it's in copyright to at least 2043.

       

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        Anonymous Coward, Apr 26th, 2012 @ 1:25pm

        Re: Re: 1907....uh?

        But Mickey is almost out of copyright again, so it will probably be extended to life Plus 100 years pretty soon.

         

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          Anonymous Coward, Apr 26th, 2012 @ 6:53pm

          Re: Re: Re: 1907....uh?

          life of the solar system Plus 100 years

          FTFY

           

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            Anonymous Coward, Apr 27th, 2012 @ 10:57am

            Re: 1907....uh?

            Life of the solar system, plus 100 years?!?!?

            You're crazy.



            How will my far reaching descendants be able to make any money off of MY hard work, once the sun, and Alpha Centauri go nova, and we escape to Epsilon Eridani.

            Copyright should be for the life of the entire Universe.
            Plus one day.

            Won't someone think of the long dead artists far flung starving descendants.

            /obviously sarcasm

             

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            Luke A, Apr 27th, 2012 @ 11:27am

            Re: Re: Re: Re: 1907....uh?

            Life of the solar system, plus 100 years?!?!?

            You're crazy.

            How will my far reaching descendants be able to make any money off of MY hard work, once the sun, and Alpha Centauri go nova, and we escape to Epsilon Eridani.

            Copyright should be for the life of the entire Universe. Plus one day.

            Won't someone think of the long dead artists far flung starving descendants.

            /obviously sarcasm

             

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            Luke A, Apr 27th, 2012 @ 11:27am

            Re: Re: Re: Re: 1907....uh?

            Life of the solar system, plus 100 years?!?!?

            You're crazy.

            How will my far reaching descendants be able to make any money off of MY hard work, once the sun, and Alpha Centauri go nova, and we escape to Epsilon Eridani.

            Copyright should be for the life of the entire Universe. Plus one day.

            Won't someone think of the long dead artists far flung starving descendants.

            /obviously sarcasm

             

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            Luke A, Apr 27th, 2012 @ 11:43am

            Re: Re: Re: Re: 1907....uh?

            Life of the solar system, plus 100 years?!?!?

            You're crazy.



            How will my far reaching descendants be able to make any money off of MY hard work, once the sun, and Alpha Centauri go nova, and we escape to Epsilon Eridani.

            Copyright should be for the life of the entire Universe.
            Plus one day.

            Won't someone think of the long dead artists far flung starving descendants.

            /obviously sarcasm

             

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        Anonymous Coward, Apr 26th, 2012 @ 1:39pm

        Re: Re: 1907....uh?

        "He died in 1973, meaning it's in copyright to at least 2043."
        In Europe.

        In America, anything pre-1923 is PD.
        In addition, pre-1976, if no American copyright was filed within a couple of years of creation, it would've been PD from about 1910 onward!
        There was no "automatic copyright" back then.

         

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          DandonTRJ (profile), Apr 26th, 2012 @ 2:32pm

          Re: Re: Re: 1907....uh?

          That's the overwhelming general rule, but there are some rare, wonky exceptions on the books. Presumably, this is one of them (though I confess not to know the full history of the particular painting at issue).

           

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          LDoBe (profile), Apr 26th, 2012 @ 2:38pm

          Re: Re: Re: 1907....uh?

          I did do some research, and in the discussion page for this piece, they determined with a lot of specific references that the original date of publication is most likely 1910, from an architectural journal, in addition, it was also exhibited from 1916 to 1917, which doesn't technically count as publication. There are likely further publications perhaps lost to history from between 1910 and 1923, but from the current evidence, I think there's a pretty strong case for the painting belonging to the public domain.

          I also found a filing for the painting in the US Copyright Office's database from 1994, on the basis for photolithographic reproduction, and claiming it was a pre-existing work. The link is Here

          It all seems utterly rediculous that something made in 1907, and published almost certainly before 1923 is being claimed under copyright.

          I couldn't find any original registration for Les demoiselles d'Avignon itself before 1994, just objects that incorporated it.

          Copyright is so broken. How can you promote creativity if it's illegal to copy other's work (with attribution). And I find it obscene to deny the public all artwork created by people who are long dead.

          What a corporate load of shit.

           

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      Guy Incognito, Apr 26th, 2012 @ 6:20pm

      Re: 1907....uh?

      Unfortunately, it is not. In the US, copyright is 70 years from death of the author, or 95 or 120 years in case of a work created by a corporation. Picasso didn't die until the 1970s, so we have another 30 years to go...

       

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    Anonymous Coward, Apr 26th, 2012 @ 1:16pm

    "These days, when other products are seen in movies -- like a can of Coke, for example -- it's often there because of product placement. "

    Showing how little you seem to understand. If you can see an actually product name, and it's a real product name, it is almost certainly a paid product placement, or a tradeoff between the movie makers and the rights holder. That is why you rarely see Dunkin Donuts, but often similar two colored boxes with "DONUTS DONUTS" on them. That is why you often see the back side of cans, or see generically red cans to imply a cola type drink.

    With HD and such, it becomes an even bigger issue. TV use to be able to get away with blurry things, now they are often more than detailed enough for people to make out.

    Generating knock off / generic cans, bottles, milk cartons and the like is an ongoing expense of making a movie or a tv show. One of the many expenses that nobody here wants to acknowledge, it seems.

     

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      John Fenderson (profile), Apr 26th, 2012 @ 1:24pm

      Re:

      Nice, informative comment. I'm marking in insightful despite that odd, and incorrect, parting insult.

       

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      jupiterkansas (profile), Apr 26th, 2012 @ 1:30pm

      Re:

      I'm surprised they haven't come up with generic brands that they use in all movies, an alternate reality, the way they use 555 phone numbers. It would be cool to see the same non-products in movie after movie.

      And why oh why can't I go eat at Krusty Burger?

       

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        Anonymous Coward, Apr 26th, 2012 @ 1:37pm

        Re: Re:

        Actually, if I understand correctly, many of the movie prop companies that service hollywood have all sorts of generic things of this nature, from "BEER" cans (everyone has seen those) to cars and cell phones that are specifically lacking in logos and markings. It's the nature of the game.

        It's two sided two, to be fair: Some companies don't want to be involved in movies that they don't like or that have content they don't agree with, and movie makers also see a chance to be able to sell screen space to make a little extra money. It's to both side's benefit in the end.

         

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        DannyB (profile), Apr 26th, 2012 @ 1:41pm

        Re: Re:

        The 555 phone numbers was to insure that they never use anyone's real phone number.

        Before the use of 555 phones numbers, some unlucky person who who had the phone number in a movie would be subjected to all kinds of calls and possibly even pranks or harassment.

         

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      Anonymous Coward, Apr 26th, 2012 @ 1:41pm

      Re:

      "One of the many expenses that nobody here wants to acknowledge, it seems"

      Actually not, although if people here had their way, there would be a lot less expense as you'd just use whatever you needed to use.
      That is after all one of the big issues here, that copyright and other so called IP laws as currently written and enforced are a major drag on creativity as opposed to the encouragement to creativity that it is supposed to be.

       

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      ChrisB (profile), Apr 26th, 2012 @ 2:25pm

      Re:

      Mike: when ... products are seen in movies ... it's often there because of product placement

      Idiot AC: If you can see an actually product name ... it is almost certainly a paid product placement

      How can you say the exact same thing as Mike and then preface it with "how little you seem to understand"? Do you even read the f*cking posts before this sh!t comes out of your mouth? Wow.

       

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        Anonymous Coward, Apr 26th, 2012 @ 7:55pm

        Re: Re:

        You want some cheese to go with your whine?

        Mike said that it is "often" that way. I said it is almost certainly. That is to say that unless someone is a real amateur and doesn't realize what they are doing (and the liability that comes with it), that almost any real label is almost certainly product placement. There isn't "often" about, it is almost a given.

        Further, I went to on the mention the "look alike" labels often used to make it appear that something is real but it really isn't.

        So, Did you even read my f*cking comment before this sh!t comes out of your mouth?

         

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        Anonymous Coward, Apr 30th, 2012 @ 11:28pm

        Re: Re:

        reading comprehension fails this one,

        if you see the back side of what you THINK is a coke can, it MAY be a product placement

        If you can CLEARLY read or see the actor holding it, or drinking it, it IS a paid placement

        a company doesnt pay to be in a movie, for you to see the back of the can/box etc...

         

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      JMT (profile), Apr 26th, 2012 @ 2:31pm

      Re:

      Personally I have no problem at all with non-intrusive product placement in films, because in a strange case of life imitating art, I actually use "products" every day! When I see a real product like Coke replaced with a red can labelled "Soda", it sticks out in an obviously fake way. It literally makes the movie (or TV program) worse by showing obvious 'fake'. Where things get stupid it the second money, licensing or permission is involved. Nobody should have to ask permission to use a real-life product in a realistic, preferably non-disparaging way. No manufacturer/supplier deserves payment for such exposure of their product, they should just be glad for the publicity and that it's not a competitor's product instead. The benefit to the film-maker is realism, which is always a lot less obvious that fakes. It's a win-win for both parties, unnecessary complicated (or ruined) by the lawyers, as usual.

       

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    Yakko Warner (profile), Apr 26th, 2012 @ 1:17pm

    What about...

    Who gets paid if you have a painting of a Coke can? What if Coke put a painting on a can and put that in a movie?

    What if the movie includes a scene of someone painting, where the painting is created as a consequence of making the movie? In other words, who paid whom for the picture Jack draws of Rose in the movie? As a key plot point, it obviously has value to the movie; but because it was drawn in the movie, the picture owes its existence to the movie....

     

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      DannyB (profile), Apr 26th, 2012 @ 1:23pm

      Re: What about...

      Who gets paid if you have a painting of a Coke can, and the coke can has a painting of a Coke can, and that coke can has a painting . . .

       

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      Richard (profile), Apr 26th, 2012 @ 2:05pm

      Re: What about...

      but because it was drawn in the movie, the picture owes its existence to the movie....

      Then it becomes a work for hire for the studio - and they will own it.

       

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      Anonymous Coward, Apr 26th, 2012 @ 2:51pm

      Re: What about...

      That was my thought too. What if a studio used Warhol's Campbell's soup cans painting? If structured just slightly more idiotically, copyright law and product placement could impose an never-ending circle-jerk of money between Warhol, Campbell's, and the movie studio.

       

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    Anonymous Coward, Apr 26th, 2012 @ 1:19pm

    Wah-wah-wah! OMG, a copyright holder wants to exercise their rights in their own property!

    Doesn't being a whiny ass bitch ever get old, Mike?

     

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      Chris Rhodes (profile), Apr 26th, 2012 @ 1:23pm

      Re:

      Apparently the trolls have switched from "nuance" to "whiny'.

       

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      Tim K (profile), Apr 26th, 2012 @ 1:28pm

      Re:

      From something over a hundred fucking years old, go whine somewhere else, or at least be a troll that puts some thought into their bitching

       

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      DannyB (profile), Apr 26th, 2012 @ 1:30pm

      Re:

      > OMG, a copyright holder wants to exercise
      > their rights in their own property!

      Nice red herring there.

      The real discussion should be about whether intellectual property actually is property, and whether those rights should exist or be much more limited.

      It's also reasonable to discuss and be surprised by art purchases not including copyright assignments, or at least blanket licenses.

      Here's an alternative version:

      OMG, a slave holder wants to exercise
      his rights with his own slave girls/boys.


      Doesn't being a whiny ass bitch ever get old, Mr. Lincoln?

       

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        Chosen Reject (profile), Apr 26th, 2012 @ 1:49pm

        Re: Re:

        The real discussion should be about whether intellectual property actually is property
        Of course not. Intellectual property isn't a right granted to someone, it's a right taken away from everyone else. Property is something that can be gotten, intellectual property is something that you take away from everyone else.

        Your right to copy and distribute isn't granted to you when you get a copyright since you and everybody else already has that right; instead, it's taken away from everyone else.

        Your right to use an invention isn't given to you when you get a patent since you and everybody else already has that right; instead, it's taken away from everyone else.

        Your right to use a mark in commerce isn't given to you when you get a trademark since you and everybody else already has that right; instead, it's taken away from everyone else.

         

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          Anonymous Coward, Apr 26th, 2012 @ 2:54pm

          Re: Re: Re:

          It's "taken away from everyone else" so the original creator has time to recoup their investment and make profit before copycats/ripoffs/whatever are allowed. No company would risk money creating new products and innovations if they had to compete with others who don't have any costs to recoup right off the bat.

          Granted, Disney fucked the system up when they got in bed with the gov't to make copyright life+70 instead of 56 years. But that's not the fault of any creator today trying to make a living.

           

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            DannyB (profile), Apr 26th, 2012 @ 3:00pm

            Re: Re: Re: Re:

            So you are in favor of shortening copyright lengths to something sane?

            But you still seem to misunderstand the purpose of copyright. It is not so someone can recoup their investment. The purpose of copyright is to promote the useful arts and sciences. Copyright is no longer doing that. Even if it were just life of the author.

             

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            Chosen Reject (profile), Apr 26th, 2012 @ 3:37pm

            Re: Re: Re: Re:

            We can debate the reasons for it, whether the reasons are valid, and even the specifics of the reasons or the implementation, but none of that changes what it is. Copyrights, patents and trademarks do not grant new rights; they only take rights away from everyone else.

             

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      weneedhelp (profile), Apr 26th, 2012 @ 2:17pm

      Re:

      Doesn't being a whiny ass bitch ever get old, AC?

       

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      Lawrence D'Oliveiro, Apr 26th, 2012 @ 4:40pm

      Is “Intellectual Property” Property, Or Isn’t It?

      On the one hand they argue that copyrights and patents are just like property, and should be treated exactly like property.

      On the other hand, when I buy a piece of “intellectual property”, it turns out it’s not my “property” at all, to do with as I would any other piece of my property.

       

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    Anonymous Coward, Apr 26th, 2012 @ 1:21pm

    The part that really gets me about this is the following:
    ...the Picasso estate, which owns the copyright to the image, refused Mr. Cameron’s original request to include it in his 1997 movie.

    I'm having difficulty imagining the people at the estate reaching the conclusion that seeing the painting in a film is harmful in any way and should be disallowed. What could possibly have been going through their heads?

     

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      DannyB (profile), Apr 26th, 2012 @ 1:36pm

      Re:

      > What could possibly have been going through their heads?


      On TechDirt the copy trolls lies they do spreads,
      While visions of settlements danced in their heads.

       

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      dabble, Apr 26th, 2012 @ 6:20pm

      Re: refusal

      My guess is Cameron requested the use of the painting for free or very low cost, and the estate wanted more money.
      Apparently, Cameron is of the opinion that (a little bit paraphrased), "it's cheaper to pay for forgiveness than buy permission."

       

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      Anonymous Coward, Apr 30th, 2012 @ 11:31pm

      Re:

      maybe because the painting wasnt ther IN REAL LIFE, they didnt want to be assoacited with someone lying about historical events??

       

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    Baldaur Regis (profile), Apr 26th, 2012 @ 1:23pm

    I used to think.....

    ....that the kind of people who work for these agencies would be morally ambiguous, like thinking that masturbating in an airplane is basically OK. Now I realize you have to be the kind of person who says "I don't suffer from insanity, I enjoy every moment of it".

     

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    TimothyAWiseman (profile), Apr 26th, 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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      Rikuo (profile), Apr 26th, 2012 @ 1:48pm

      Re: This time it makes sense, sometimes

      I must take issue with your use of the word "compensated". That implies that the artist lost something and that the licence fee Cameron paid was to rectify his loss.
      Except there is no loss. Picasso is dead.

       

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        Anonymous Coward, Apr 26th, 2012 @ 2:43pm

        Re: Re: This time it makes sense, sometimes

        Well who lost something is the question. You could make the argument that "Museum of Modern Art" has lost potential visitors.

        As with so much else in the hypothetical world of copyright-compensation it is completely impossible to prove and it could just as well have the opposite effect.

         

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          teka, Apr 26th, 2012 @ 5:09pm

          Re: Re: Re: This time it makes sense, sometimes

          You could make the argument that "Museum of Modern Art" has lost potential visitors.


          MOMA is not even the ones demanding go-away money, it is the estate/heirs.. who don't own the painting and have not for many years.

          That is right, a group of lawyers and relatives who do not own the piece are demanding to be paid (multiple times) for its (probably fair use) passing inclusion in a movie, despite the questions on whether or not they hold any rights over the piece at all any more.

           

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          Anonymous Coward, Apr 26th, 2012 @ 5:29pm

          Re: Re: Re: This time it makes sense, sometimes

          >You could make the argument that "Museum of Modern Art" has lost potential visitors.

          You're joking, right? Not every piece of art is as ubiquitous as the Mona Lisa or Venus de Milo. MOMA's complaint has only raised awareness that the art exists, though in this bad faith people might not want to give a shit anymore.

           

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        TimothyAWiseman (profile), Apr 27th, 2012 @ 10:46am

        Re: Re: This time it makes sense, sometimes

        You make a fair point, and perhaps simply the word "paid" would have been better.

        With that said, I do beleive that a painter with a valid copyright should, in general, be able to demand payment for any major use of their painting in a film.

        That of course is qualified with in general because it should not apply when there is fair use, but that is a case by case decision. It also should not qualify after the copyright term expires. I believe our current copyright term is too long, but that is somewhat tangential to the current discussion.

         

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      JMT (profile), Apr 26th, 2012 @ 3:01pm

      Re: This time it makes sense, sometimes

      "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."

      You realise 'the artist' is dead right? Why should anybody have to be compensated?

       

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      DannyB (profile), Apr 26th, 2012 @ 3:05pm

      Re: This time it makes sense, sometimes

      I disagree with one point. You say that with a can of coke, the value is drinking it. But then you say that with art the value is not in seeing it.

      The value IS in seeing it. If I didn't want to see it again, and again, and again, then it has no value. The value it has is that I want to keep on seeing it, and therefore might even pay to go to a museum or private art gallery, or buy a reproduction, or other ways it can be monitized.

      If nobody wants to see it, it has no value. Having no value, money cannot be made from it. But neither does having value mean that the owner must charge money to see it either. The owner might put it on public display for free. It still has value if people are lined up to see it, even for free. If it has no value, and I display it for free, then nobody will come to see it.

       

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      Doug Webb, Apr 26th, 2012 @ 7:52pm

      The real problem is art not being shown

      This type of restriction means artists can't get their work out in front of people. This directly harms artists who rely on selling their original work, which is almost all of them. No one will learn of new artists because their work can't be shown in any type of media. Rights don't do diddly squat if no one knows you have them because no one can see your work.

       

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    Anonymous Coward, Apr 26th, 2012 @ 1:34pm

    Solar Flares?

    Maybe it's all these solar flares making humans insane.

     

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      DannyB (profile), Apr 26th, 2012 @ 1:38pm

      Re: Solar Flares?

      Then why are copyright maximalists, patent trolls and hoarders, lawyers, and congresscritters the only ones affected?

      Or said differently, why are the general population immune?

      How does money and/or power make one more susceptible to the solar flares?


      I look forward to results published in a scientific journal that nobody can afford.

       

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        Togashi (profile), Apr 26th, 2012 @ 8:36pm

        Re: Re: Solar Flares?

        Maybe they're not affected because they're copyright maximalists, patent trolls and hoarders, lawyers, and congresscritters. Maybe they're those things because they're affected.

        That sounds like a good plot for a bad sci fi movie. Solar flares only affect people with a specific brain chemistry, causing their views on intellectual property law to twist and warp into dangerous ideas that threaten freedom worldwide!

         

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    Anonymous Coward, Apr 26th, 2012 @ 1:35pm

    Because get off my lawn

     

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    iambinarymind, Apr 26th, 2012 @ 1:46pm

    So long as we allow the people who call themselves "government" to hold a monopoly on the initiation of force within the geographic location known as the "United States" as well as allowing 15,000+ hours of compulsory government indoctrination (public schools) be administered to our children, issues of the "permission-based society" you speak of will only continue to grow into an ever more totalitarian state.

    We must advocate voluntary relationships & exchange through the non-aggression principle / self-ownership / and the utmost respect for property rights.

     

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    Anonymous Coward, Apr 26th, 2012 @ 1:53pm

    Re:

    "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."
    This doesn't make sense. substitute copyright with slavery and read again. Accepting the legality of oppression but arguing over whether the oppression should be mild or harsh is still accepting oppression.

    Copyright benefitting the creator might be justified, but any copyright or IP rights benefitting any descendants of dead creators is no more justified than slavery.

     

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    gorehound (profile), Apr 26th, 2012 @ 1:59pm

    Since I am Unemployed for the last ten months and slowly getting more Negative I will state not only my Disgust the Copyright Fanatics but my wish to see a revolution.I have no love even one bit for our nice Corrupted to far left and to far right Government.They and the rich pricks for Decades now have brought this BS on.And when I say Decades I have not forgotten the days of the early 70's holding up Protest Posters against "Overseas Cheap Labor" which was embraced by a bunch of these types even though they damn well knew those people were either outright slaves or being paid the Amount we make in one day but to the overseas workers that one day of US pay was their yearly salary.
    The rich greedsters have screwed our Economy up but good and many of us are not able to find work or have gone homeless and non-medical insurance.The Copyright people remind me of the same scum who screwed over our World and continue to use the screwdriver.
    Hey, I said I am getting negative.You guys would to if you were in your late 50's and probably ending up in a box in bum park.

     

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      Cowardly Anonymous, Apr 26th, 2012 @ 2:51pm

      Re:

      A revolution still isn't a good answer. Putting everything back together after a hard-fought revolution takes too long, and you would either die fighting or end up right back where you started.

      You obviously still have access to a computer, which means you still have time to go entrepreneurial or investigate new skills. Drag yourself as deep into debt as they'll let you whilst concentrating on finding something you can do that will get you hired or allow you to monetize on your own.

      If you can, pull yourself out with the new funds. If they are too small, go for bankruptcy but just make sure you keep the hook into the new source of funds.

      Starting over is harder than getting started the first time, but that's the route that will have maximal chance of success.



      Once you're back on your feet, then look back to politics and fix the problem. You won't get far from an unstable foundation.

       

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    Anonymous Coward, Apr 26th, 2012 @ 2:02pm

    Liability insurance

    "Generating knock off / generic cans, bottles, milk cartons and the like is an ongoing expense of making a movie or a tv show. One of the many expenses
    that nobody here wants to acknowledge, it seems."


    Really, so you are admitting that compliance with IP law imposes a substantial cost on movie production?
    If so, you shouldn't mind a reduction in the artificially inflated cost imposed by IP law.

     

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    Vic, Apr 26th, 2012 @ 2:12pm

    Here is an interesting question to ponder: what if the picture shown in the movie was actually not the Picasso's ORIGINAL? Let's say somebody made a copy of it and that copy was used...
    What would be the requirement for licensing? Does the "compensation" go to the Picasso's estate or to the author of the copy (that would be logical)? And if latter, does the Picasso's estate then has a claim against Cameron or the artist who made a copy? What if it is an unknown artist? Or a con who intentionally made a fake to sell as an original and who died many years ago?

     

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      Anonymous Coward, Apr 26th, 2012 @ 3:00pm

      Re:

      That's actually not such a silly question. Depends on if a "copy artist" (forget the real term, but it's basically when another artist does their own rendition of an existing painting) did it or if it is actually the original. If it's a copy artist, then I would think the compensation goes to the artist and Picasso's estate.

       

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    Mike42 (profile), Apr 26th, 2012 @ 2:14pm

    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.

    This is because a large percentage of people dream of painting a picture or writing a book which magically makes them millionaires overnight. I just talked to a friend this weekend, and explained how the Patent Shakedown works, where someone threatens a lawsuit without even giving up what patent was violated.

    "Hey, we need to do that. I'd like to have an extra couple hundred G's lying around."

    People know it's not fair. They just hope it can work in their favor some day.

     

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      John Fenderson (profile), Apr 26th, 2012 @ 2:26pm

      Re:

      People know it's not fair. They just hope it can work in their favor some day.


      Indeed. I think it cuts even deeper, too. Thsi type of response comes from people who feel powerless and hopeless to improve their situation. They're saying that they don't think the injustice can ever be resolved. If you have to live in a world where an injustice is inevitable, then your friend's perspective is about the only (albeit weak) method of defense from it.

      We frequently see it here from the maximalists who don't care if they're shafting innocent people because they think the someone will inevitably get shafted and they're just trying to make sure it's not them.

      We also see it from the handful of people here who say that because the big copyright holders behave so terribly they will just pirate their copyrighted materials. It's the exact same line of reasoning.

      The plain truth is that nothing is inevitable. Injustice can be, and historically is, resolved. It takes a lot of time and effort -- typically spanning generations -- but that time and effort can bring us to a place where the injustice is reduced for everybody instead of just pawned off on our neighbor.

       

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      Simple Mind (profile), Apr 26th, 2012 @ 3:02pm

      Re:

      There was a show on PBS that asked a room full of MBA students if they thought executive pay was too high or unfair. None of them thought it was. When asked why not, the answer was because they themselves wanted the opportunity to become a CEO making that kind of money. The selfishness of the human being knows no bounds. It is all about how does this affect me. The good of the many never comes into it.

       

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    Anonymous Coward, Apr 26th, 2012 @ 2:19pm

    the more this gets pushed the more it will get silly/expensive for clearing everything. Imagine shooting a city street scene on a low budget and have to get cover/pay/permission for people caught on camera, any brands, everything covered by copyright. Pay day for lawyers i suppose which is probably the secret point. More money for lawyers. So shameful and sad.

     

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      John Fenderson (profile), Apr 26th, 2012 @ 2:51pm

      Re:

      Imagine shooting a city street scene on a low budget and have to get cover/pay/permission for people caught on camera, any brands, everything covered by copyright.


      I have seen low-budget productions that have clearly struggled with this and resolved it by minimizing anything but tight close-ups in public and where wider shots were essential, digitally blurring most of the background street scene.

       

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        Roger Lancefield, Apr 26th, 2012 @ 5:00pm

        Re: Re:

        I have seen low-budget productions that have clearly struggled with this and resolved it by minimizing anything but tight close-ups in public and where wider shots were essential, digitally blurring most of the background street scene.

        Something which, in my opinion, justifies the use of the phrase to the left of the colon in the article title.

         

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    Nick Taylor, Apr 26th, 2012 @ 2:22pm

    "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?"

    Because the 4th Estate is corrupt... broadcast media, which is where the biggest, most easily organised (or duped) biomass of voters/spenders gets their information, ARE the same corporations that are participating in this insanity.

    To change anything, we need to displace broadcast media.

     

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      Gwiz (profile), Apr 26th, 2012 @ 5:10pm

      Re:

      To change anything, we need to displace broadcast media.

      We are. One website at a time.

      Ask any twenty-something which is more relevant, the internet or broadcast TV. It's just a matter of time.

       

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    AC Cobra, Apr 26th, 2012 @ 2:27pm

    Yes

    ""Generating knock off / generic cans, bottles, milk cartons and the like is an ongoing expense of making a movie or a tv show. One of the many expenses
    that nobody here wants to acknowledge, it seems."


    Really, so you are admitting that compliance with IP law imposes a substantial cost on movie production?"

    Yes, really. Avoiding copyrighted/trademarked works in the frame is a significant parameter of our job. We spend a lot of time avoiding this, and manufacturing generic equivalents to replace things like bottles, signs etc.. The set dresser runs around with boxes of fake labels to place over the real logos on things like cel phones, pop machines, whatever. We avoid shooting signs and billboards, although sometimes that is unavoidable. In some cases then the item would be cleared, and there are full time workers on larger productions doing this, or they will digitally paint it out in post production. In some cases I think it's considered fair use if a logo is on say a billboard in the background of a street scene but the producers tend to err on the side of safety.

    You can view all this as creating more jobs for film workers, although often the work just gets added on to someone's job rather than hiring another person. Whichever way you look at it it definitely adds work and hence expense to the production of a movie or TV show.

     

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    drewdad (profile), Apr 26th, 2012 @ 2:34pm

    Speaking of using an image....

    The original article has a screenshot from the movie of Kate Winslet holding the painting.

    Actually, it's a picture taken of the movie playing on a television.

    I'm irritated that the New York Times would show this image, because it's obvious that the aspect ratio is all screwed up!

     

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    AC Cobra, Apr 26th, 2012 @ 2:48pm

    This hurts smaller film makers disproportionately

    This situation definitely harms culture in general. Well known artistic works cannot be shown for fear of infringement, so we get watered down imitations instead. The general public loses.

    The problem is worse for lower budget productions. Larger budget productions can afford to either license works, or pay workers to manufacture imitations. Smaller productions cannot afford this. Larger productions also attract product placement deals, much less likely for smaller budget projects.

    These issues are a daily fact of life in my job, but I agree that the situation is well past out of hand and a net detriment to society.

     

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    Anonymous Coward, Apr 26th, 2012 @ 3:00pm

    Is there any culture left that I can consume without benefiting some asshole or another?

     

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    Susan, Apr 26th, 2012 @ 3:31pm

    Just curious...

    So if someone photographs me in front of an Andy Warhol print and I post the picture on Facebook, I could be liable for copyright infringement? That's sick.

     

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      DandonTRJ (profile), Apr 26th, 2012 @ 4:00pm

      Re: Just curious...

      Obvious fair use. Non-commercial, low-res (as displayed on Facebook), does not supplant the market for the original, etc. But technically, yes, an infringement of copyright prior to the affirmative defense of fair use. It's one of the interesting aspects of modern copyright; we violate it all day, every day, and just presume that most of the violations will pass by without incident. The whole Righthaven debacle reinforces that notion: U.S. courts may not be helpful on copyright issues all too often, but when they see copyright being truly abused, they can really lay the smackdown.

       

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        Anonymous Coward, Apr 26th, 2012 @ 10:04pm

        Re: Re: Just curious...

        It's one of the interesting aspects of modern copyright; we violate it all day, every day, and just presume that most of the violations will pass by without incident.

        And that is exactly what's wrong with it.

         

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    Mark, Apr 26th, 2012 @ 4:21pm

    I've purchased original artwork before, and the original artist asked for my permission to continue to have a facsimile reproduction of the piece in his own portfolio. I had no problem with his request, of course, but I was nonetheless astounded he would have to do that. What I learned from this is that in the case of unreproduced originals, the person who owns the physical painting of a work evidently holds *ALL* the rights on that work... and, apparently, that there is absolutely no expiration on it. My kids will inherit the painting when I'm gone, and they will continue to have more control over it than the artist's own children.

    Taking from this what I understand to be the general case, whether the copyright has expired on the work or not is irrellevant. The owner of the original physical work evidently has all legal rights to control unauthorized reproductions of the work, just as a copyright holder would. The difference is that the rights a physical owner has are perpetual. Cameron would have been far better off simply not using an image that the owners did not permit.

     

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      RD, Apr 26th, 2012 @ 4:35pm

      Re:

      "Taking from this what I understand to be the general case, whether the copyright has expired on the work or not is irrellevant. The owner of the original physical work evidently has all legal rights to control unauthorized reproductions of the work, just as a copyright holder would. The difference is that the rights a physical owner has are perpetual. Cameron would have been far better off simply not using an image that the owners did not permit."

      uh...yeah....no thats completely wrong, sorry. The copyright is effective from the time the work is CREATED, out to whatever overall length it is. Just because you buy the original doesnt confer to you ETERNAL AND PERPETUAL COPYRIGHTS. Sorry, it just doesnt. Now, the author can TRANSFER those rights to you permanently, but they STILL HAVE THE SAME CRITERIA. The clock doesnt reset just because the copyright is transferred (or, as in your insane example, last FOREVER.) It just means that, for as long as the copyright is active, you get to have those rights.

       

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    Renee Marie Jones, Apr 26th, 2012 @ 5:20pm

    Egad!

    The painting was painted in 1907 for gosh sakes! It was well known and shown to many people. How can ANYONE still have the copyright on it?

    This is indeed insane. It is THEFT by the "rights organizations" from all of us. It destroys culture and only benefits a few lazy, greedy, rent-seeking thugs. No one should have a right to expect society to pay them money for something done by a DEAD ANCESTOR OVER A HUNDRED YEARS AGO!

    The Picasso estate members need to get up off their lazy asses and get jobs instead of stealing from the rest of us.

     

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    Anonymous Coward, Apr 26th, 2012 @ 6:26pm

    Someone else above hinted at the next step.
    Film a city street? Get clearances from the architects of each building on that street. And each manufacturer of each car on that road. And any manhole covers with the manufacturers logo? that too.

     

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    Rekrul, Apr 26th, 2012 @ 7:08pm

    Cameron should tell them to get bent, then when they file a lawsuit, he can say that they didn't pay the "litigation license" on his film, which coincidentally is twice what it would cost to license the painting for the 3D version of the film.

     

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    HumbleForeigner (profile), Apr 26th, 2012 @ 11:26pm

    Weep for the future, weep for us all

    The current insanity of the ownership mentality has gone too far! How long until you are charged for merely looking at a painting, under the reasoning that you are making a mental copy. How long until you are charged for simply breathing because a ownership troll owns a plantation and some of "their" oxygen is in the air you are breathing. This needs to end, NOW!

    A revolution is way overdue, the government must be reminded that THEY ARE THERE TO SERVE OUR INTERESTS, not the interests of a chosen few. As for the content industries...they need to be reminded that We.Don't.Need.Them, if anything, they need us.

     

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    Anonymous Coward, Apr 27th, 2012 @ 12:34am

    Re:

    "We frequently see it here from the maximalists who don't care if they're shafting innocent people because they think the someone will inevitably get shafted
    and they're just trying to make sure it's not them.

    We also see it from the handful of people here who say that because the big copyright holders behave so terribly they will just pirate their copyrighted
    materials. It's the exact same line of reasoning."


    No not aat all, copyright is a restriction on freedom of information, and equating copyright maximalists who seek to impose an artificial monopoly with those opposing copyright is wrong for a lot of reasons.

     

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    Marie, Apr 27th, 2012 @ 5:42am

    really?

    The thing about copyright and art in particular is that a works value increases significantly after the artist dies. Most artists don't see any of the real rewards of their work - usually after a lifetime of poverty. Those laws are in place so that the artists descendants can reap some reward and not get screwed the same way their parents did. It's the rare individual (i.e. Damian Hirst)_ who can trick the public into valuing their work while their still alive. There laws don't prevent the original from being displayed - they only prevent assholes from making money off of someone elses work for awhile. 70 years after the creators death really isn't that long, especially in the lifetime of a piece of art.

     

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      Niall (profile), Apr 27th, 2012 @ 8:07am

      Re: really?

      So what if the value appears later? Really, what did the artist's great-grandchildren do to justify not only handouts from society for nothing more than sharing some genetic code with someone, but also that they get all sorts of control over it.

       

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        Marie, Apr 27th, 2012 @ 8:55am

        Re: Re: really?

        What handouts from society? Legal ownership was left to them for a very limited period of time. If they didn't want the painting in the stupid movie, that was their decision to make. They didn't try to sell permission - they simply said no. Clearly Cameron understood that since he asked their permission in the first place. If that particular painting - it's image - wasn't so important to his story, he'd have picked a different one.

         

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        mar, Nov 26th, 2013 @ 7:09am

        Re: Re: really?

        My father has a famous photo that he had royalties on so people can license the image. Before his passing, he legally transferred ownership to me. So as a descendant, I am now the copyright owner. Perfectly legal.

         

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    Anonymous Coward, Apr 27th, 2012 @ 9:30am

    So, if you own a CD then you should be able to play the CD in your movie? If you use a painting you should have to pay even if the copyright holder refuses to allow it.

     

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    rhoffman, Apr 27th, 2012 @ 10:52am

    Your article misses the point

    Trade mark law is most simply made and manufactured for the profit of attorneys. Complicated laws contradictions across international borders. Obtuse standards all breed litigation its all about billing hours. Cameron is a terrible example like Picasso who never paid for anything & went to restaurants & left a doodle on a napkin to pay as he went -we are talking about an indulgent "super hero- God figure" who does what he wants. Most often the greatest thievery takes place on the unknown under the radar artists & creatives whose work is simply used. Remember attorneys & billing hours thats all trademark is

     

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    rhoffman, Apr 27th, 2012 @ 11:04am

    You dont know what you are talking about

    this article is an abomination. I worked for 10 years managing product placement in films for a fortune 100 company. Never EVER EVER does a film pay to place coke. Its the other way around. Someone from the film calls a company because they have a kitchen scene & says do want our actors to drink coke or we can call Pepsi will you pay us $5000 so Dustin Hoffman will drink coke. Another internet abomination of life in the real world.

    Its really sad that people will read your article & think you know what you are talking about.

     

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    rhoffman, Apr 27th, 2012 @ 11:36am

    You dont know what you are talking about

    this article is an abomination. I worked for 10 years managing product placement in films for a fortune 100 company. Never EVER EVER does a film pay to place coke. Its the other way around. Someone from the film calls a company because they have a kitchen scene & says do want our actors to drink coke or we can call Pepsi will you pay us $5000 so Dustin Hoffman will drink coke. Another internet abomination of life in the real world.

    Its really sad that people will read your article & think you know what you are talking about.

     

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    aikiwolfie, Apr 27th, 2012 @ 11:38am

    It Comes Down To Reproduction Rights

    Most artists produce a "masterpiece". And then from that masterpiece they go on to produce copies. If they sold you the copyright to the original masterpiece, they wouldn't be able to profit from or even produce and sell the reproductions.

    Of course there is an easy way around this problem. Don't sell the masterpiece until you're done with it. Reproductions only have any significant value if they are relatively rare limited editions.

     

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    Peter Austin, Apr 29th, 2012 @ 2:09am

    The last picture I tried to buy

    In Brighton UK, about 20 years ago, I tried to buy a painting. It was OK but no masterpiece. Being aware of IP issues, I insisted on getting the copyright. Smug bastards wouldn't even consider it, even when I went back and offered another 25%. So I didn't buy it and I've never been back to a sales gallery since. Really don't see how that helped the artist.

     

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    vanya marinkovic, May 26th, 2012 @ 4:06pm

    loved this....

    I realllllllllly enjoyed this article!

     

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    Allan, Jun 11th, 2012 @ 7:23am

    o_O

    This issue seems "a bit" strange. If the copyright policy will continue developing in such way, we soon won't be able to look at anything without paying a Copyright Holder...:(

     

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    Darlene, Jun 25th, 2012 @ 6:14am

    Copyright

    Wait a minute, I thought there was something in the copyright law regarding incidental paintings, artwork, architecture in film and photographs. But, maybe that has to do with editorial works and not movies because everything on a movie set is purposely placed.

    We need a serious revamp of the copyright law, especially in this digital age where everyone posts their photos and artwork all over the internet. It's waaaay too complicated.

     

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