I’ve been writing about music clearance but the act of getting the legal permissions to use copyrighted content in your production applies not just to musical works but to art and literary works as well. Not taking the time to get the appropriate licensing can land you in legal trouble as ESPN has just found out.
Last year ESPN broadcast “The Bronx Is Burning”, a popular TV series created by their in-house production company ESPN Original Entertainment. The series portrayed the background events leading to the 1977 New York Yankees dramatic World Series run.
Included in the second episode, “Team In Turmoil“, was a full screen shot of Norman Rockwell’s painting “Bottom of the Sixth“. The painting depicts three umpires looking skyward as raindrops begin to fall. It is a classic Rockwell capturing a unique and wonderful baseball moment. The original painting hangs in the Baseball Hall of Fame in Cooperstown.
On May 3rd, the Associated Press reported that ESPN is being sued by Curtis Publishing Company, the owner of the Rockwell painting, for using the image without obtaining a license.
Curtis sent an e-mail to ESPN lawyers notifying them that ESPN did not have a license to use the painting and was committing willful copyright infringement, the lawsuit said.
The lawsuit seeks to bar ESPN from rebroadcasting the series until it withdraws use of the painting. In other words, until it removes any footage of the painting from the episode.
Compounding the problem for ESPN is that The Bronx Is Burning has been sold on DVD and VHS format. Recalling the unsold copies and destroying them and having to issue a new movie with the infringement removed will prove costly for the cable network.
The article, written by Randy Kennedy, is about the working methods of the artist Richard Prince. Mr. Prince’s art is currently being celebrated in a 30-year retrospective at the Guggenheim Museum in New York City.
One of the methods Mr. Prince uses to create his art is to take photographs of other existing photographs that he finds published as advertisements in magazines.
The strength of the art is that the images he photographs, once removed from their function as advertisements, comment on our culture showing us archetypical images of our society - images that Madison Avenue ad execs have learned have great power. One of Prince’s favorite co-opted images is the Marlboro Man.
But it seems some of Mr. Prince’s photographs are nothing more than enlargements of existing photos. Mr. Prince has done little more than make the decision that the image matches his artistic sensibility. He then calls his enlargement of the existing photo his work and sells that work for increasingly high dollar values. In fact, one of his Marlboro Man pictures set an auction record for a photograph selling for 1.2 million.
The NY Times article centers around Jim Krantz, a successful commercial photographer who took several of the Marlboro Man ad photos “appropriated” by Mr. Prince. One Prince photograph, which sold at Christie’s for $332,300, is an exact duplicate of Mr. Krantz’s original except that it has been blown up to a huge size. Mr. Krantz says, “there’s not a pixel, there’s not a grain that’s different.”
Jim Krantz was paid by the Philip Morris Company for the original photos but has received nothing from Richard Prince. To date, Krantz has asked for no monetary compensation. He is asking for some type of acknowledgement or credit as the original photographer. After all, it’s not just the photo itself, it’s the composition - the conception, the pose, the exact moment to capture - these things were decided by Krantz and re-used by Richard Prince.
The matter provides a stunning look at the challenges facing interpretations of the Fair Use statue within US copyright law. The NY Times article says…
Mr. Krantz, who has shot ads for the United States Marine Corps and a long list of Fortune 500 companies including McDonald’s, Boeing and Federal Express, said he had no intention of seeking money from or suing Mr. Prince, whose borrowings seem to be protected by fair use exceptions to copyright law.
My interest concerns whether Mr. Prince’s use of other people’s photographs truly qualifies as fair use. Here is the law….
—————
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
—————
(1) clearly Richard Prince’s art is of a commercial nature.
(2) a photograph is a copyrightable work.
(3) in some cases, it appears that Prince has used 100% of the copyrighted work.
(4) this is the main issue - the effect upon the potential market for or value of the copyrighted work - when an ad campaign is over, do the elements of the campaign, the photo, the copy, do they have any further value? Has the use by Prince harmed the further value of the photograph? This would be the crux of any fair use challenge.
Mr. Krantz said it best, “If I italicized ‘Moby Dick’, then would it be my book? I don’t know. But I don’t think so.”
Though Jim Krantz owns the copyright to most of his photographs, he no longer owns the copyright to the Marlboro Man photos. The Philip Morris Company, the maker of Marlboro cigarettes, owns the copyright. Any fair use challenge to Richard Prince’s art would have to initiate from Philip Morris.
Originally written as guides to USENET usage and forum posting, 10 Big Myths About Copyright Explained and A Brief Introduction to Copyright serve as great reference articles for anyone needing basic information about copyright issues. Each article contains a good description of the complex and often misleading aspect of copyright law known as “fair use”.
The articles were written by Internet pioneer Brad Templeton, founder of ClariNet Communications, one of the first businesses to be solely based on the web.
While reading Geetesh Bajaj’s Powerpoint blog on his excellent Indezine website, I came across a Powerpoint presentation that I think would be useful to all media producers who struggle with copyright and licensing issues.
The powerpoint presentation deals exclusively with copyright infringement as it pertains to photography and is the work of PACA (the Picture Archive Council of America ). It lays out the basic copyright law but it is the case studies that are included that really make this document worth your time. You get to see actual infringement cases, what the infringement charges were, and you can see side-by-side, the actual photograph and the infringement photograph. Other points…there is no fixed % an image can be changed to avoid infringement. That is a common myth that circulates within design studios.
The presentation deals with Fair Use, the DMCA (Digital Millenium Copyright Act), ISP Safe Harbor and the public domain. All in all, it’s a really good document to know about if you are ever unsure about your usage of a photo or any other work which you want to use but don’t own the rights to.
A good take-away from this presentation that I would emphasize is that often permission and licensing is easily obtainable directly from the source. In other words, instead of going into competition against a photographer, by recreating a photo (the composition), it is cheaper in the long run to contact the creator and obtain permission to create a derivitive work.
I’ve been listening to a fairly new podcast created by Chris Matthieu, the founder of Numly and Jonathan Bailey, writer of the blog Plagiarism Today. In their podcast, titled, the Copyright 2.0 show, they discuss many copyright and intellectual property issues that have made recent headlines. What’s more, links to all news stories they discuss are made available through a del.icio.us page.
The podcast is fairly low-key and conversational. Both Chris and Jonathan stress that they are not lawyers and are not offering advice on copyright law, they are examining copyright in this era of Web 2.0 and digital information.
You can hear the podcast by clicking on the “Play” button on the player below. There are several shows to choose from.
The 27 page pdf transcript successfully frames the YouTube copyright infringement issue looking at remedies such as DMCA takedown notices and filtering technology.
The panel includes Donald Verrilli, a partner at Jenner & Block, the law firm that brought the suit by Viacom against YouTube and Google. Read his comments to see a glimpse of Viacom’s legal strategy. He rejects YouTube’s DMCA defense saying “And I don’t think we are getting any serious dispute from YouTube about whether this is infringing activity. After all, when these DMCA notices go to YouTube, YouTube does pull the works down… It’s not like this is a real fight about whether there is some great level of fair use or non-infringment use going on here.”
Along with Verrilli and moderator DeJong, the other panelists are Solveg Singleton, a senior adjunct fellow at The Progress & Freedom Foundation, Christian Dawson, of Servint Internet Services (in the discussion he gives the ISP side of the infringement debate) and William Rosenblatt, a recognized authority on digital media technologies.
A great discussion with very informative panelists.
copyright, copyright+infringement, curtis publishing company, espn, infringement cases, infringement lawsuit, intellectual+property, intellectual property issues, television production, the bronx is burning