About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

22 Colum.-VLA J.L. & Arts 247 (1997-1998)
Surviving Copyright Infringement: Fair Use of Protected Works in Biopics

handle is hein.journals/cjla22 and id is 257 raw text is: Surviving Copyright Infringement:
Fair Use of Protected Works in Biopics
by Richard Hurowitz
INTRODUCTION
Pablo Picasso was one of the world's greatest artists and one of the twentieth
century's legendary figures. If ever there was a public figure, and one who embraced
the spotlight, surely it was he. He is celebrated because of his genius and because of
his artwork, and he continues to be the subject of great public fascination.' But when
the filmmakers Ismail Merchant and James Ivory began work on their film, Surviving
Picasso-based in part on Life with Picasso, the memoirs of Francoise Gilot, the
mother of two of Picasso's children-they found themselves blocked in a very
unusual way by copyright problems. The Picasso estate, controlled by the artist's
family and unhappy with the script, refused to allow reproductions of any copyright
protected paintings to be used in the film.2
*     B.A., History, Yale University, 1995; J.D. Expected, Columbia Law School, 1998. The author
wishes to thank his family for their love and support.
Copyright © 1998 by Richard Hurowitz. All rights reserved.
1.       See, e.g., ARIANNA STASsiNOPOuuS HUFFINGTON, PICASSO: CREATOR AND DESTROYER,
1988; NORMAN  MAIER, PORTRArr OF PICASSO AS A YOUNG MAN, 1995.
2.        See Richard Dorment, Pablo Without Picasso?, Daily Telegraph (London), Sept. 2, 1995,
at 12. There is a deep irony in the entire situation. The Picasso estate is controlled by the artist's son,
Claude, whose father never spoke to him or his sister, Paloma, after the publication of Life with Picasso,
out of anger at their mother, Gilot. Huffington, supra note 1, at 445. For anecdotes on the litigiousness of
the Picasso estate, see Sharon Waxman & Andrew Decker, Picasso, Inc.: Pain and Profit, ARTNEwS,
Sept. 1995, at 110. It is also worth commenting that the Picasso estate was quite clear that the pictures
could not be used because they did not like the film's portrayal of the artist. The estate has no tradition of
not permitting the use of Picassos in all films.
In an interview, Ted Feder, President of the Artists Rights Society, kindly provided information on the
estates' side of the case, and I am greatly appreciative of his input. The Society represented both the
Picasso and Basquiat estates in the negotiations discussed in this introductory section. According to Mr.
Feder, the makers of Surviving Picasso had sought permission from the family, who refused because they
felt the script was destructive of their reputation. Interestingly, the estates of Matisse and Braque both
permitted their works to be used and fees were charged. This raises the interesting question of use of works
in biographical films by other artists who may be crucial to telling the story of its subject, as these two are
vital to Picasso's life and work. Similarly, on the Basquiat film, the family would not permit the use of the
images, but this time the Warhol and now Picasso estates acquiesced (underscoring the motives of the
refusal of the latter to license to Merchant-Ivory).
It is the position of the Society that use of these works in these films would not constitute fair use. It
claims that a film like Surviving Picasso is clearly commercial, not primarily critical, and involves the use
of whole works, and is therefore ineligible for fair use. This Note will, of course, debate the topic and
ultimately argue against the Society's position. According to Mr. Feder, the filmmakers' lawyers never
even attempted such an argument. Mr. Feder also explains that licensing fees for paintings can and do
involve substantial sums of money. See Interview with Ted Feder, President of the Artists Rights Society,
October 1997.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most