Hanging Copyrighted Paintings as Props in Movie Was Fair Use
Plaintiff, an African-American artist, sued Warner Bros. ("Warner") for copyright infringement based on the use of two copyrighted paintings as props in the movie Made in America. The paintings were displayed in the living room of Sarah, a character played by Whoopi Goldberg. They were shown in the movie for a total of not more than 60 seconds. Plaintiff alleged that he would never have granted permission for the use of his works even if asked, since he considered the movie "culturally exploitive."
The court granted Warner's motion for summary judgment based on the "fair use" defense under 17 U.S.C. 107. The court assumed that Warner's use of the works constituted criticism or comment as "parody," given the juxtaposition of the African-American art against the image of Hal, a white automobile salesman in cowboy boots and hat. As to the statutory fair use factors, the court first held that while the movie was a commercial project, it never used Plaintiff's works as a catalyst to increase sales for the movie, and Warner did not stand to profit from using Plaintiff's works without paying the customary price. The movie did not seek to serve as a substitute for Plaintiff's works.
Next, the factor of the nature of the copyrighted work weighed in Plaintiff's favor, since the works serve to promote and express "afrocentric ideals and principles," and Plaintiff would not have granted permission to use them in a movie he considered culturally exploitive.
As to the amount and substantiality of the use, the display of the works for less than 60 seconds supported a finding of fair use.
Finally, the factor of the effect of the use on the potential market for Plaintiff's works also supported Warner. While Plaintiff's interpretation of the movie as culturally exploitive was not without merit, there was no showing that Warner's use had interfered with the sales of the works, adversely affected the potential market, constituted a substitute for Plaintiff's original work, or cause demonstrable harm to Plaintiff.
Jackson v. Warner Bros., Inc., Civil Action No. 96-CV-72976 (Aug. 29, 1997) (Hood, J.) (Docket No. 18, 14 pp.) This article was written by Ronald S. Longhofer, a partner in our Litigation Department, and previously appeared in the November 1997 edition of the Michigan Bar Journal.