Art of the possible

Maybe there is such a thing as bad publicity. Consider this. You rent out your posh, fully furnished, seafront house commercially for a few months. You discover the business you rented it to makes movies. But not family movies, this was no Walt Disney production team. These movies were not even capable of standard classification. These were hard core pornographic movies made during the tenancy and without your knowledge. You might be amused, or more likely, horrified. You may even feel violated and deceived. What’s to be done? Just how do you seek redress?

Perhaps contacting an intellectual property lawyer is not on your list of first moves. You might be missing a trick. As OPUS never fails to point out, IP is all around us and could quite possibly ride to your rescue when you least expect it. Here’s how and why.

Lights, camera, and action!

The above actually happened to Martha’s Vineyard artist Leah Bassett and her house in Aquinnah town. Among several claims Ms Bassett filed, was one for infringement of copyright. Her own artwork was, she said, “clearly visible” in the background of ten movies shot in her home. Movies entitled “Gay Massage House” and “Schoolboy Fantasies 2” – you get the gist.

Scene stealing

At the first hearing the defendants, which included individual porn actors and production companies such as Mile High Distribution Inc., sought to defend their position by claiming the artworks only appeared in the films in a de minimis capacity. i.e., a trivial amount. But the judge said the claim was not to be tossed out so easily and the claimant should at least have an opportunity to counter the de minimis challenge, additionally confirming the artworks met the low originality bar for copyrightability. Game on for the lawyers.

Frame by frame analysis

Let it be said Ms Bassett’s legal team were thorough in their investigation. They contended she owned copyright in 21 “drawings, paintings and photographs” and they compiled some 10,000 screenshots from eight of the defendant’s films, comprising 175 minutes of unauthorised and infringing uses to demonstrate more than de minimis usage.

Sharp focus

The case law on background images, copyright breach and de minimis counterclaims is fascinating. It’s all about the focus. In Ringgold v. Black Entm’t Television Inc., 1997, copyright infringement was found when a well-known artist’s works was shown in the background of a movie, plainly visible and recognisable, nine times for a total of 26.75 seconds. Conversely, in Sandoval v. New Line Cinema Corp., 1998, it was held de minimis because the copyrighted photographs in question, visible for 35 seconds, suffered from

“…poor lighting, great distance and lack of focus…”

so much so, they were said the judge, insufficiently identifiable to the lay observer.

Artistic triumph

Long court process short, Leah Bassett’s argument was finally successful. She won the thrust of her copyright case in August 2020 which concluded only last month.

And so, ended an oddball case where the lawyers were as creative as their artist client and intellectual property rights saved the day.

Hat’s off to them!

Murray Fairclough
Development Underwriter
OPUS Underwriting Limited  
+44 (0) 203 920 9985
underwriting@opusunderwriting.com
Researched by Ben Fairclough