Tuesday, March 30, 2010

Tick Tock: Who Owns the Clock?

Dear Rich: I am making a film and recently we found out a clock we own is from an art print. We contacted the artist to obtain permission to have it as part of our set design in the film and not be sued. The artist informed us that only original works can be copyrighted and that prints are free to use in film and television. I was wondering if this is true or not? And if so, does it apply to posters? No, it's not true. There's even a case that held that reproducing a poster of a "church quilt" for 27 seconds in a television series was not a fair use. The court in that case was influenced by the prominence of the poster, its thematic importance for the set decoration of a church and the fact that it was a conventional practice to license such works for use in television programs. (Note: There are other cases that have held that the brief use of paintings, prints and original art in film sets is permitted as a fair use or as de minimis use.) If you're looking for the bottom line: prints and original works will be treated the same when used as part of a movie set.
Where does that leave you? The Dear Rich Staff believes that if you want to be prudent, you should return to the artist and seek permission. If the artist insists no permission is required, have him provide you with that statement in writing. That's not as good as a permission but it will make it much harder for the artist (or the artist's successors in interest) to later claim you never sought the rights.