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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.

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