Holy Infringement -
An interesting copyright conundrum is presented in the making of a motion
picture. While movies themselves are copyrightable as visual works, copyrighted
materials used within the movie usually must be cleared with the copyright
holders. It seems somewhat evident that using a hit song on the soundtrack of a
movie would require a license from the artist, but the use of visual elements
displayed within a movie is somewhat less evident.
The cameras of a major motion picture filming around the world are bound to
incidentally pick up a multitude of copyrighted materials. Identifying these
materials, and subsequently locating the copyright holders and negotiating
licenses, would be a Herculean task. Consequently, incidental displays of
copyrighted material are generally not actionable. However, if copyrighted
material is prominently displayed, then it should be licensed. Just such an
issue arose in the production Batman Forever . In a case that is the
first copyright suit involving public art reproduced for a film set, a
sculpture was prominently featured (as a backdrop) approximately eight times in
the movie. It is a fundamental tenet of copyright that certain pieces of
art, including sculpture, are eligible for copyright protection.
Warner Bros. claimed that since the film crew had permission from the building
owner to film at the site, they had a right to include in the shots the
sculpture which was located on the grounds.
Radial towers on the set
However, mere possession of copyrighted material does not confer any of the
copyrights upon the possessor. Unless the artist had transferred his
copyright to the building owner, the building owner could not license others to
reproduce the work and the producers of Batman Forever would be
obligated to seek a license from the copyright holder. Consequently, permission
must be obtained from the copyright holder in order to reproduce images of the
sculpture. Warner Bros. did not get a license to publicly display this work,
and consequently the artist filed a multi-million dollar against Warner Bros.
for copyright infringement. The sculpture in question is titled Zanja Madre
and was created by Minneapolis based sculptor Andrew Leicester. The sculpture
is overseen by the Los Angeles Community Redevelopment Agency; it cost $2.5
million and is publicly displayed at 801 S. Figueroa Street in Los Angeles.
The magic hand in the photo above is pointing to one of the ominous towers.
According to the artist, the sculpture explores the uneasy relationship between
Los Angeles and water conservation. Zanja Madre means 'Mother Ditch',
and the sinister guardian portrays Los Angeles as a water vampire sucking the
life water from the surrounding desert. The artist is particularly concerned
about the message of his sculpture being trivialized and turned forever in
people's minds to Gotham detritus. In this case, the towers adorn the
Second Bank of Gotham.
This case actually involves several copyright infringements. In the first
instance, the statue was filmed and photographed and used both in the film and
in marketing materials. Additionally, the statue was reproduced by
constructing a scale model that was displayed in the film. As you can see in
the photo above, a stage hand in the scaffolding is putting finishing touches
on the towers, part of the scale model reproduction of the original sculpture.
Art and Architecture
The trial came down to essentially two issues: 1) copyright infringement for
making 3-D reproductions of the radial towers (minatures used for some special
effects shots); and 2) copyright infrigement for filiming and otherwise taking
photographs of the radial towers. To make things interesting, it turns out
that as part of the contract for the commission of the sculpture,
Leicester gave the building owner the exclusive right to make 3-D copies
of the sculpture.
Regarding the first issue, the district court found that since Leicester had
transferred an exclusive right to to the building to make copies of the
sculpture, that the building owner was the holder of that particular
copyright. Consequently, the building owner was able to grant a
sub-license to the Warner Bros. to create the derivative works. Note that
the result would not have been the same if the right granted from Leicster to
the building owner was not exclusive. Consequently, the court found that
since Warner Bros. had a valid sub-license, that there was no copyright
infringement on this issue.
Regarding the second issue, the district court found that since the district
court found that the towers, although containing artistic elements, were
actually part of the architectural work of the building. Consequently,
the pictures taken of the towers were not considered infringing under the
exemption for pictorial representations of buildings in the Architectural
Works Copyright Protection Act of 1990.
With those two strikes against him, Leicester appealed on the basis that the
district court essentially mutilated his sculpture by separating the radial
towers from the rest of the work and then considered the radial towers in
isolation as being part of the architectural work. The appeals courts
affirmed the district court's decision, but there was a dissent that felt that
the classification of the sculpture as an architectural work was a bit of a