| If art work is incorporated in a multimedia production, a license may be needed. Pictorial, graphic, and sculptural works of art are copyrightable80 and displaying them in a program without permission could be an infringement. Remember that ownership of an item of art work does not necessarily include ownership of the copyright to it. Thus, the owner of the physical item may have the right to sell it but does not necessarily have the right to reproduce it. The latter right is part of the copyright. Note also that California law provides that when a work of art is sold, the right to reproduce it is reserved to the artist unless that right is transferred in writing and the writing specifically refers to the right of reproduction.81
Suppose a piece of sculpture appears momentarily in the background of a scene. Is permission of the copyright owner necessary? Probably not. The maker of school room charts and wall decorations that appeared in the background as scenery in a "Barney and Sons" videotape recently sued for copyright infringement.82 The charts and decorations appeared only fleetingly and were often obscured by the actors. The court refused to issue an injunction against the producers of the videotape on the grounds that the use was so minimal that it was not infringing. The fact that the video was educational in nature was an important factor in finding a fair use. However, if a producer features art work in the foreground, a release should be obtained.
When Congress passed the Visual Artists Rights Act of 1990,83 the United States expressly recognized certain moral rights that artists have in works of visual art such as paintings, drawings, sculpture, and still photos. Moral Rights include the Right of Paternity, which is the right of an author to claim authorship to her work and prevent the use of her name on works she did not create, and the Right of Integrity which prevents others from distorting or mutilating her work.
Moral Rights differ from copyright. While the copyright to a work may be sold, the artist's moral rights may prevent the buyer from removing the artist's name or modifying the work. While the United States generally does not recognize moral rights, many of the moral rights granted artists in other countries are protected here as violation of our unfair competition and defamation laws.
A multimedia producer who incorporates art work in a program could be liable if the work is distorted, which may occur if the work is digitized and metamorphosed into a new form.
Footnotes and citations:
80 17 U.S.C. § 102a(5) (1982).
81 Cal. Civil Code § 982(c) (1994). See Playboy Enterprises, Inc. v. Dumas, 831 F. Supp. 295 (S.D.N.Y. 1993).
82 Frank Schaffer Publications, Inc. v. The Lyons Partnership, L.P., Civil Action No. CV 93 3614R (C.D. Cal. 1993).
83 17 U.S.C. § 106A (Supp. V 1993).
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