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Old August 4th, 2006, 08:51 AM   #1
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More Copyright confusion...

and maybe (hopefully) only a philosophical argument.

When shooting a scene which has original artwork in the background, artwork done by a living "starving artist" but which is used merely as set dressing, and which was purchased at an art auction, is it necessary to get permission from that artist? This strikes me as being similar to "product placement" in a film, where the talent might be drinking a particular brand with the label showing.

With the growing popularity of HD and it's inherent detail/sharpness, it's arguable that a single screen shot/frame capture of such artwork could be enlarged to reproduce a viable "copy". Is the industry facing increasing restrictions and/or permission requirements due to the proliferation of HD?
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Old August 4th, 2006, 10:33 AM   #2
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Is it an original, one of a kind, or an original print (one of many "originals")? I woudl think, and just off the top of my head here, that the owner of the one of a kind owns it, lock stock and barrel?? I would think, I don't know.

but as for using it in the background, I woudl think it's incidental..(and therefore okay). do you have crystal in a dining room scene, and have to get permission from Waterford? again, I don't know.
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Old August 4th, 2006, 11:23 AM   #3
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I'd expect it hinges on whether it's just an incidental part of the set dressing or is an integral part of the story, such as the pictures in "Portrait of Dorian Grey"
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Old September 10th, 2006, 12:33 PM   #4
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Quote:
Originally Posted by Denis Danatzko
and maybe (hopefully) only a philosophical argument.

When shooting a scene which has original artwork in the background, artwork done by a living "starving artist" but which is used merely as set dressing, and which was purchased at an art auction, is it necessary to get permission from that artist?
Absolutely. It is copyright infringement, period.

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This strikes me as being similar to "product placement" in a film, where the talent might be drinking a particular brand with the label showing.
You're confusing trademark and copyright, which protect entirely different interests. Use of a trademark in a film is fine as long as (1) there is no likelihood of consumer confusion as to source or sponsorship, and (2) it does not result in dilution of a famous mark. Copyright, on the other hand, is an exclusive right that vests in the copyright owner; use of protected expression without permission is infringement.

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With the growing popularity of HD and it's inherent detail/sharpness, it's arguable that a single screen shot/frame capture of such artwork could be enlarged to reproduce a viable "copy". Is the industry facing increasing restrictions and/or permission requirements due to the proliferation of HD?
As soon as you shoot someone else's protected expression, you've created an unauthorized copy -- it doesn't matter whether it's enlarged or not. There is a doctrine called "incidental reproduction" that addresses incidental copying in the course of shooting film or video, but it's not a well-developed doctrine and applied inconsistently in different jurisdictions.
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Old September 10th, 2006, 12:43 PM   #5
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Quote:
Originally Posted by Bill Mecca
Is it an original, one of a kind, or an original print (one of many "originals")? I woudl think, and just off the top of my head here, that the owner of the one of a kind owns it, lock stock and barrel?? I would think, I don't know.
It doesn't matter -- absent a written agreement to the contrary, or an employer/employee relationship in which the employ creates the work in the course and scope of employement, copyright remains with the author of a work, not the purchaser of the copy/original.

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but as for using it in the background, I woudl think it's incidental..(and therefore okay).
No, no, no!!! Please do a search on dvinfo for my name and "incidental reproduction."
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Old September 10th, 2006, 03:44 PM   #6
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Gotta' learn more about this.

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Originally Posted by Paul Tauger
It doesn't matter -- absent a written agreement to the contrary, or an employer/employee relationship in which the employ creates the work in the course and scope of employement, copyright remains with the author of a work, not the purchaser of the copy/original.


No, no, no!!! Please do a search on dvinfo for my name and "incidental reproduction."
I'll have to search for your posts to learn more. You're right, I don't well understand their difference from trademarks. For example, aren't 'logos' copyrighted? I.e., I can't use Microsoft's or Coke's without permission, yet in a video I can use the products with the logo showing???

It's hard to imagine that all such art work is created as "original" for a movie/video/TV; even harder to imagine that permission has been obtained for all the art work that's ever appeared in the backgrounds of film, video, TV, and stills. It's nearly unbelievable that has - or does occur as often as you say it should. (Being unfamiliar with the topic, I suspect my use of the word "artwork" is probably too narrow/less "legal" than you mean).

I find the entire subject riddled with confusion to the point of insanity, though you obviously seem to have a firm grasp of it. (I'm presuming you're an attorney). With such narrow restrictions, it seems a wonder that anything (other than bare, drab walls, original sets, or products such as "Oatie Flakes") ever gets released or broadcast.

Thanks for the reply.
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Old September 10th, 2006, 03:49 PM   #7
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Quote:
Originally Posted by Denis Danatzko
I'll have to search for your posts to learn more. You're right, I don't well understand their difference from trademarks. For example, aren't 'logos' copyrighted? I.e., I can't use Microsoft's or Coke's without permission, yet in a video I can use the products with the logo showing???
Some logos may be protected by both copyright and trademark. However, the word marks themselves are protected only by trademark.

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It's hard to imagine that all such art work is created as "original" for a movie/video/TV;
Either that or public domain.

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even harder to imagine that permission has been obtained for all the art work that's ever appeared in the backgrounds of film, video, TV, and stills.
It depends on the work. Occassionally, fair use might apply. However, use of background in film has been litigated -- this isn't a close question.

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It's nearly unbelievable that has - or does occur as often as you say it should. (Being unfamiliar with the topic, I suspect my use of the word "artwork" is probably too narrow/less "legal" than you mean).
By "artwork," I mean "work of authorship fixed in a tangible medium," which is the definition of protectable expression.

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I find the entire subject riddled with confusion to the point of insanity, though you obviously seem to have a firm grasp of it. (I'm presuming you're an attorney).
I am. This is why studios have legal departments that vet everything.

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With such narrow restrictions, it seems a wonder that anything (other than bare, drab walls, original sets, or products such as "Oatie Flakes") ever gets released or broadcast.
Watch how often you'll see "fake" products, i.e. those created by the prop department, or blurred out marks on television shows and in movies.
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Old September 10th, 2006, 05:24 PM   #8
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So glad copyright-law isn't universal :)
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Old September 10th, 2006, 05:44 PM   #9
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Originally Posted by Chris Wren
So glad copyright-law isn't universal :)
The Netherlands is, I believe, a Berne Copyright Convention signatory. Copyright law is more universal than you think. ;)
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