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.
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.
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 stretch.