New Guidance On Use of Artwork as Set Decoration
9-Jan-1998

A US Court Says Producers Should Expect To Pay

United States Court of Appeals:
A prominent US Court has provided new guidance on the right to depict artwork on motion picture and television sets.  In a case called Ringgold v. Home Box Office, the artist, Ringgold, sued HBO for using one of her works of art in a sitcom, without the license to do so.

The work of art was entitled 'Church Picnic Story Quilt', and it consisted of a blend of painting, handwritten text and quilted fabric, which the artist said united to communicate a parable about the African-American experience in the early 1900's.

While Ringgold retained the copyright in the work, she had licensed the reproduction of posters and thousands of copies were sold.

In the HBO episode in dispute, Ringgold's work was shown in one scene involving a recital in a church hall.  A poster of the work was hanging on the wall in the background of the scene, and the Court described the visibility as follows:

In this scene, at least a portion of the poster is shown a total of nine times.  In some of those instances, the poster is at the centre of the scene, although nothing in the dialogue, action, or camera work, particularly calls the viewer's attention to the poster.  Nine sequences in which a portion of the poster is visible, range in duration from 1. 8 6 to 4.16 seconds.  The aggregate duration of all nine sequences is 26.75 seconds ....

In the longest segment, between 4 and 5 seconds, nearly all of the poster, at least 80 percent, is visible... Since the camera focuses precisely on the members of the audience [in the recital scene], the poster, hung to the left, is not in perfect focus, but it is so close to them that the poster is plainly observable, even though not in exact poster, hung to the left, is not in perfect focus, but it is so close to them that the poster is plainly observable, even though not in exact focus.  An observer can see that what is hung is some form of artwork, depicting a group of African-American adults and children with a pond in the background.  The brevity of the segment and the lack of perfect focus preclude identification of the details of the work, but the 2­dimensional aspect of the figures and the bold colours are seen in sufficient clarity to suggest a work somewhat in the style of Grandma Moses.  Only the painting portion of the poster is observable; the text and the material on the bordering quilting cannot be discerned.

All the other segments are of lesser duration and/or contain smaller and less distinct portions of the poster.  However, the repetitive effect somewhat reinforces the visual effect of the observable four to five second segment just described.

HBO tried to have Ringgold's claim dismissed by the Court by arguing that the use of the painting was de minimis, i.e. that the use of her artwork was so trifling that it was not an infringement of copyright.  HBO also argued that the depiction of the poster was fair use under American law.  The first argument was rejected by the Court, when it stated:

In some circumstances, a visual work, though selected by a production staff for thematic relevance, or at least for its decorative value, might ultimately be filmed at such a distance so out of focus that a typical program viewer would not discern any decorative effect that the work of art contributes to the set.  But that is not this case.  The painting component of the poster is recognizable as a painting, and with sufficient observable detail for the 'average lay observer' ... to discern African-Americans in Ringgold's colourful, virtually 2­dimensional style.  The de minimis threshold for actionable copying of protected expression has been crossed.

Fair use arguments were also rejected when the Court stated:

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. ... It must be recognized that visual works are created, in significant part, for their decorative value, and, 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 the set.

The Ringgold case provides blunt advice to producers: if artwork is shown with any recognizable detail, for even seconds at a time, obtain a release or license from the artist.

A CANADIAN BROADCAST CAN PUT YOU IN AMERICAN COURTS

CBC's Canadian News Broadcast Subject to US Courts for Infringement of US Copyright

United States District Court:
The Canadian Broadcasting Corporation has been taken to court in California, and is facing allegations that it breached copyright by using news footage of the 1992 Los Angeles riots without the rights to do so.

The Plaintiff is the Los Angeles News Service (LANS), which produces video and audio tape recordings of newsworthy events and licenses them for profit.  During the Los Angeles riots of April, 1992, LANS was operating video cameras from a helicopter and took videotape footage of such infamous scenes as the beating of Reginald Denny.  They licensed this footage to various news organizations and television stations.

LANS claims that CBC used some of the LANS' riot footage without a license to do so.

In a preliminary hearing before trial, the CBC attempted to have LANS' claim dismissed by the court by arguing that a U.S. court had no right to rule over the CBC broadcast to a Canadian audience.   However, CBC conceded to the court that there is a 'spillover' of CBC's signal across the border into the United States, and the court noted that in 1992 and 1993 an average of 7,800 U.S. households received CBC's broadcast signal.  On the basis of this relatively small number of American households receiving the CBC signal, the U.S. court decided it had jurisdiction to hear LANS' claim.

The LANS v. CBC case tells us that a broadcaster or a producer may not be able to claim immunity from American courts, simply on the basis of a 'Canadian broadcast' which includes spillover to American residents.  Therefore, if the Canadian broadcast of a program infringes the copyright or other rights of a U. S. owner, inadvertently or otherwise, the producer may face a costly and undesirable trial in an American court.

The information contained in this Client Update is intended for general information only.  Please contact any members of the Media and Entertainment Group for additional information:

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