Film Company Uses Copyrighted Photos in Movie Scene

This case involves a man who owned the copyrights to 10 photographs of himself that showed his body and face in several different poses. The man had taken the photographs himself and never used them commercially. A film production company was making a murder mystery movie and used several of the photographs in a scene where a light box is turned on by one of the characters and it has the photographs hanging from it. The scene in the movie was approximately 90 seconds long. The light box that had the photographs was only visible in the background of the movie for thirty seconds. The photographs were obscured by other objects in the scene and the digital camera did not focus on the light box or the photographs exclusively. The photographs and the light box image were out of focus for much of the time, and the camera was focused on the foreground. The man and only a few other acquaintances were able to identify the photographs as the man’s work.

Question(s) For Expert Witness

1. If a film production company uses copyrighted photographs of a person in a small scene in a movie, is this copyright infringement?

Expert Witness Response

The main problem with the copyright infringement claim in this case is that a viewer would have to return to the theater to see the movie multiple times to really determine whether the photos were the man’s work. Also, a viewer would probably have to view the enlarged still frames from the scene before they would be able to conclude with certainty that the photographs on the light box were, in fact, his. The use of the photographs probably does not constitute copyright infringement because the light box images were probably not “legally cognizable copies” since they were very out of focus, obscured, and very small. The doctrine of “fair use” (which is a defense to copyright infringement) probably applies here because the film company was probably allowed to use the photos for artistic, creative purposes even though they were copyrighted. In this case, the use of the photos was probably not copyright infringement but was a “fair use” because the photos were used to add to the aesthetic nature of the scene in the movie. Since the photos were barely discernible in the scene, the film production company only made a “fleeting and obscured” use of the copyrighted photos and this means that it was probably a fair use of the photos. Since the film company only made a brief and transient use of the photos, this in no way affected the value and market potential for the man’s work. This means that this was probably a “fair use” of the photos and was not copyright infringement.