My Artwork’s in a Porno. Now What?
What is an artist or a museum to do when they discover that their artwork has been used in a porn film without their knowledge or approval (and they think that’s a bad thing)? Two recent legal spats raise this question. Here’s what you need to know.
Artwork in the Background of a Film
After homeowner Leah Bassett found out that her short-term tenant allowed numerous porn films to be shot in her Martha’s Vineyard home, she filed a lawsuit for, among other things, copyright infringement. She claimed that the porn films included in the background of many scenes artwork she created and used as home decoration – drawings, paintings, photographs, collages, etc.
In ruling on the parties’ summary judgment motions (pre-trial dispositive motions), Judge Patti Saris, a federal judge in Massachusetts, ruled in the homeowner’s favor on her copyright infringement claim. The defendants had argued that the homeowner’s works were not entitled to copyright protection because they either were not sufficiently original or served only a utilitarian purpose. As the originality bar for copyright protection is quite low, the court found that the homeowner met her “light burden” to show that most of her works were sufficiently original (except her slipcovers and pillows, as the fabric was not designed by her and their shapes were utilitarian in purpose).
Judge Saris rejected the defendants’ argument that they did not need a license because the background usage of the homeowner’s décor was de minimis. Judge Saris applied the legal principles set forth in the seminal case Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70 (2d Cir. 1997). That case involved the BET and HBO’s use of a poster of Faith Ringgold’s Church Picnic Story Quilt in an episode of its “ROC” sitcom. The Ringgold court found that the sitcom’s display of the poster nine times for an aggregate of 26.75 seconds in the background of a scene was not de minimis copying. In making this analysis the court considered “the observability of the copied [artwork] – the length of time the copied work is observable in the allegedly infringing work and such factors as focus, lighting, camera angles, and prominence.”
In applying the Ringgold test, Judge Saris ruled that at least one of the homeowner’s artworks was clearly visible for at least 30 seconds in ten of the porn films, which was not de minimis usage. Judge Saris noted that other artworks may appear in greater than de minimis capacity in the films, but left the full analysis to expert damages reports. Judge Saris also rejected the defendants’ argument that the copyright infringement claim should be dismissed before trial on the ground of fair use. In July, the case settled before trial.
Reproductions and Re-Animations of Artwork
Earlier this year, the website Pornhub launched Classic Nudes, an interactive guide to erotic art found in museums including the Louvre, the Metropolitan Museum of Art, the Uffizi Gallery, and the Museo Nacional del Prado. The site reproduced famous works, and featured videos inspired by these well-known artworks. For example, adult performers reportedly staged scenes from classic work including Titian’s Venus of Urbino (1538), Edgar Degas’s Male Nude (1856), and Jan Gossaert’s Adam and Eve (1525).
(As background, copyright protection only lasts for a limited duration. In the U.S., works created today generally enjoy copyright protection for the life of the artist plus 70 years, after which time the work falls into the public domain and is free for the taking. While some museums claim copyright in photographic images of public domain works displayed in their collections, others make these images publicly available with unrestricted access and use.)
Following complaints by museums including the Louvre and the Uffizi over Pornhub’s unauthorized use of images of their masterpieces, Pornhub reportedly removed some of its Classic Nudes content from its website.
Take-Away Points
We realize that some artists, artists’ estates, and collecting institutions may not wish to complain in every instance about unauthorized third-party usage. For those that wish to stop undesirable third-party usage (pornographic or otherwise), they may want to consider asserting copyright infringement claims. Before an artist or estate makes such a claim, they should consider whether their work is in fact subject to copyright protection, and whether the third-party usage is infringing. Museums, for their part, should also consider whether they were granted any copyright interests in the works in their collection, and whether they can credibly claim copyright in high-resolution images of collection pieces. They may also want to consider whether a claim might be counter-productive to the extent that it could bring more public attention to the unauthorized third-party usage.
