COPYRIGH COPYRIGHT AND TQUOTATIONANDQUO IN FILM TATIONINFAND TV ILMANDTV COPYRIGHCREATe Working Paper 2020/8 TANDQUPTLIONEL BENTLY ATIONINFI LMANDTV COPY Copyright and Quotation in Film and TV1 Lionel Bently 2 Abstract This paper explores the application of the exception permitting quotation, first introduced into UK law in 2014, to film and television. It seeks to demonstrate that the concept of quotation is broad and thus that this exception offers much-needed flexibility to film-makers to utilise copyright-protected material without obtaining permission to do so. The paper explains some of the key limitations on the availability of the defence, in particular, the requirement of fair dealing (or use in accordance with fair practice) and sufficient acknowledgment (attribution). The significance of the exception is examined through three examples: Love is the Devil, Titanic and the art piece The Clock. Introduction I have been asked to talk about copyright and quotation in relation to film and TV. The presentation will be in three parts. First, I will describe three situations where makers of films have sought to include, or have drawn upon or incorporated existing copyright-protected works in their films. The examples are ones where the inclusion of the material has proved controversial and thus gained some level of public attention. I will use these examples to frame what I am going to say. Second, I will explain a little bit about my interpretation of the law and what the courts, in the EU and UK, have said about freedom to quote. Third, I will return to the three examples to see how the law would apply to them.3 1 Editorial note (Bartolomeo Meletti): CREATe Working Paper 2020/8 – Copyright and Quotation in Film and TV, by Professor Lionel Bently – is an edited transcript of the keynote delivered by Bently at Learning on Screen Members’ Day: Copyright and Creative Reuse, 8th December 2018, RSA House, London. On 12th February 2020, Bently delivered the CREATe Public Lecture ‘Quotation under Copyright Law and the textual paradigm’ at the University of Glasgow. A short report on Bently’s Public Lecture is available at https://www.create.ac.uk/blog/2020/07/30/report-create-public-lecture-by-professor-lionel-bently-on-copyright-and- quotation-beyond-the-textual-paradigm/ . The CREATe working paper series publishes a variety of formats, including work in progress, pre-prints of accepted articles, literature reviews and edited transcripts of lectures and seminars of wider public interest. The aim is always to make new research accessible, quickly and openly. 2 Herchel Smith Professor of Intellectual Property, Faculty of Law, University of Cambridge. The following is based on a presentation given at Learning on Screen Members’ Day: Copyright and Creative Reuse on 8th December 2018. It has been updated to reflect changes in the law as of 24th April 2020. Both talk and paper drew on Tanya Aplin and Lionel Bently, Global Mandatory Fair Use: The Right of Quotation (Cambridge: CUP, 2020, forthcoming). Apart from Tanya, I am indebted to Robert Burrell, Peter Fydler, Emily Hudson, Martin Kretschmer, Bartolomeo Meletti, Claudy Op den Kamp, Richard Paterson and Annabelle Shaw. 3 The framing examples are illustrated with artworks and film stills with a view to exploring how the quotation exception might apply to art and film. As such, the use of the images in this paper is covered by the quotation exception itself, provided by Section 30 (1ZA) of the Copyright, Designs and Patents Act 1988. 1 (1) Three Examples The first example concerns a well-known film, Love Is The Devil: Study for a Portrait of Francis Bacon, released in 1998. As the title suggests, it is about the British artist Francis Bacon. It was directed by John Maybury and featured Derek Jacobi in a stunning performance as Bacon and Daniel Craig as his lover. The film received very good reviews. Writing in The Guardian, Adrian Searle described the film as: a devilish brew of naturalism, Baconesque film effects, history and gossip. It is a warped anthropological detour into the fag end of 1950s Soho bohemia, dragged too far into the 1960s but it is also a tragic love story, with astonishing performances and character cameos.4 For those who do not recall who Francis Bacon is, here is one example of Francis Bacon’s work, that is reasonably typical of his style:5 Figure 1 Highlight of Study for the Nurse in the Film "Battleship Potemkin" by Eisenstein (Francis Bacon, 1957) 6 Although the film is a biography of a short period in the life of a very famous artist, Love Is The Devil explores Bacon’s life but without ever showing any of his artworks. The reason was the directors and producers could not get permission from Francis Bacon’s estate.7 Francis Bacon died in 1992, his estate held all the copyrights and they would not license the use of the images in the film.8 As Director, John Maybury explained in an interview with Film-maker magazine: We came up against resistance from the art establishment in this country. … the Marlborough Gallery, which was holding the estate of Francis Bacon at the time, …basically said, "This film is not going to be made." It was extraordinary to have those 4 Adrian Searle, ‘Love Is The Devil: The View from the Art World,’ The Guardian, 9 November 2012. 5 Whereas this talk concerns the use of art-works and films in films, this work of Bacon highlights a parallel issue: the use of film in art work. As will be clear, it is quite possible that this, too, might be treated as “quotation.” 6 https://sammlung.staedelmuseum.de/en/work/study-for-the-nurse-in-the-film-battleship-potemkin 7 Daniel Witkin, ‘Fleshed Out,’ (July/Aug 2018) 54(4) Film Comment 22-23 (“Maybury was barred by Bacon's estate from showing any of the painter's actual work … In lieu of the paintings themselves, Maybury goes to strenuous lengths to replicate and evoke their style.”) 8 To some critics, this was a positive feature: writing in Sight and Sound, Sep 1, 1998, 47, Michael O’Pray says that “The absence of any of the artist’s paintings …helps to deflect it from being about ‘Art’ and instead makes it into a film about styles of life (something which has always fascinated Maybury).” 2 people ganging up against something which at the time was such a small thing. The estate refused to allow any of his paintings to be shown in the film and threatened lawsuits if I [depicted them]. When I sent them my script they claimed to own all of my writing, saying that it was Bacon’s, which was kind of flattering but absurd. So, we supplied the art department with polaroids of [Bacon’s] images and they made paintings that were just backgrounds from Bacon. In that first scene we used a reference photo from a show he had in Venice. Throughout the film there are just backgrounds that you might see reflected in a mirror or something. I was convinced to make the film look like a Bacon.9 The question that I hope to address is: could Maybury have used the images of Bacon paintings lawfully even without the consent of the estate? The second example concerns a film that is even more famous, released the year before Love is the Devil: the blockbuster, and Oscar-winning, Titanic from 1997, directed by James Cameron and starring Leonardo DiCaprio (as Jack) and Kate Winslet (as Rose). Although the most memorable parts in the film include the “real party” below deck, the steamy-scene in the car on the cargo area and, of course, the breaking of the boat in two,10 as ever the interest for copyright- scholars lies elsewhere, in a segment that has sometimes been called the “Something Picasso” scene. Early in the film, as part of the exploration of the unhappy relationship between Rose and her fiancée, Cal (played by Billy Zane), Rose is depicted showing off a collection of artworks that she has purchased in Europe. When she picks up one particular canvas and is asked Figure 2 The “Something Picasso” scene from Titanic (dir. James Cameron, 1997) who it is by, Rose responds “oh something Picasso”. The painting she holds is, evidently, a version of a Picasso picture, Les Demoiselles d’Avignon. 9 ‘Forced Perspective’ at https://filmmakermagazine.com/archives/issues/fall1998/forced_perspective.php 10 Matthew Bernstein, ‘”Floating Triumphantly”. The American Critics on Titanic” in Kevin Sandler and Gaylyn Studler (eds), Titanic: Anatomy of a Blockbuster (Rutgers University Press, 1999) (analyzing the reviews). 3 Figure 3 Les Demoiselles d'Avignon (Pablo Picasso, 1907) 11 What is of interest to us is that the picture that she is holding up is not actually Les Demoiselles d’Avignon, nor even a reproduction of it. It is rather a picture “inspired by” and recognisable as something that can pass as Les Demoiselles. Cameron did not get a licence and, according to various press reports,12 the inclusion of the image did, in fact, generate some sort of a dispute as to whether he should have done. Apparently, a collecting organisation, the US Artists Rights Society, sought and apparently was paid some money. The details of that arrangement are unknown, but the issue should be clear: when, if ever, can you use a version of a painting in a film without getting a licence?13 The third example is less famous, but more recent. It concerns the work of the artist Christian Marclay, The Clock (2010), which debuted at the White Cube Gallery in 2010 but was recently on show at the Tate Modern.