2 Fordham Ent. Media & Intell. Prop. L.F. 159 (1991-1992)
Incidental Artwork in Television Scene Backgrounds: Fair Use or Copyright Infringement

handle is hein.journals/frdipm2 and id is 165 raw text is: INCIDENTAL ARTWORK IN TELEVISION
SCENE BACKGROUNDS: FAIR USE OR
COPYRIGHT INFRINGEMENT?
INTRODUCTION
On October 18, 1990, Bill Cosby ordered the removal of a mural
from the background of the opening credits of his NBC television
series, The Cosby Show.' The removal resulted from a dispute
involving two murals: an original wall mural, called Street of
Dreams, painted by students of the Creative Arts Workshop for
Homeless Children on a Harlem building, and an allegedly similar
mural shown on the series.2 Although Bill Cosby and the show's
producer, Carsey-Wener Co., had spoken with the Workshop, nego-
tiations broke down before final clearance.3 Consequently, the
show's art department designed an original mural, using it instead
of Street of Dreams. Newspapers described the new mural as hav-
ing been inspired by the wall mural in Harlem.4 The newly cre-
ated mural, although it used similar colors and elements, was not
identical to Street of Dreams.'
The Cosby Show situation illustrates the issue of whether unau-
thorized use of artwork in the background of a television broadcast
infringes upon an artist's copyright. There are three potential copy-
right issues raised: infringement of an artist's reproduction right; in-
fringement of an artist's display right; and allowance of the
incidental use under the fair use exception.
It may seem hard to believe that a fraction of a backdrop on a set
could command so much attention. Yet, any unauthorized use of a
recognizable painting, a published book on a shelf, a sculpture on a
table, or a poster on a wall in the background of a production, gives
rise to potential copyright infringement claims.6 Accordingly, many
1. The Cosby Show (NBC Television).
2. Personals: Cosby Show Takes Down the Mural, S.F. CHRON., Oct. 18, 1990,
at A10.
3. Made to Bring Joy, a Mural Instad Creates Anger, Pitting Homeless Harlem
Kids Against The Cosby Show, PEOPLE, Oct. 29, 1990, at 80 [hereinafter Made to
Bring Joy]; Personals: Cosby Show Takes Down the Mural, supra note 2, at A10;
Short Takes; Cosby Drops Children's Mural from Show in Flap Over Credit, L.A.
Tnds, Oct. 17, 1990, pt. P, at 10 col. 1. The original mural was not used because
the children's group would have required the show to: 1) obtain clearance. from
each of the sixty-three young artists; 2) give credit to the artists; 3) pay for the use of
the concept. Personals: Cosby Show Takes Down the Mural, supra note 2, at A10.
4. See Made to Bring Joy, supra note 3, at 80.
5. Personals: Cosby Show Takes Down the Mural, supra note 2, at A10.
6. Copyright infringement differs from trademark infringement under the Lan-
ham Act, 15 U.S.C. §§ 1051-1127 (1982 & Supp. H 1984), which would involve
the use of any words, marks, names, symbols, or devices used by a manufacturer or
merchant to identify and distinguish his goods from those manufactured or sold by

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