You’re Getting Sued for What? An E & O Odyssey (Pt 13)

by Dentons
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This post is part of an occasional series highlighting the type of risks which film and TV producers face and which are supposed to be covered by “errors and omissions” (E&O) insurance.  The series aims to demonstrate that what might seem to a producer to be unjustified paranoia on the part of their lawyer is, on the contrary, well-founded paranoia.  These posts will point to actual lawsuits which have been filed against producers and distributors for various alleged rights infringements (whether copyright, trade-mark, right of publicity, or otherwise) – and which inform the nit-picking approach taken by producer’s counsel.

(I should note for regular readers of the Signal that the fact that we have published three installments in the “You’re Getting Sued for What? An E&O Odyssey” in the last twenty-four hours is purely coincidental. It’s not our fault that so many interesting lawsuits have been filed recently. We swear.)

As reported by the National Post, a Montreal-based artist is suing the producer and broadcaster of the television series 30 Vies – on the basis that footage of a graffiti tag on a building which is incorporated into the opening credits of the series constitutes copyright infringement. The lawsuit evidently seeks $45,000 in damages on the basis that the producer and broadcaster, without permission from the artist, “forged, modified, mutilated and broadcast the work” for commercial purposes. As reported by the Post, “an image in which the tag appears below the show’s spray-painted title was reproduced on promotional billboards for the show’s first and second seasons.”

Although it is not perfectly clear from the news report, it appears that the artist in question is asserting not just an infringement of his copyright, but also infringement of his “moral right” to be protected against use of a work “in association with” a product so as to prejudice the artist’s reputation.

The extent to which graffiti needs to be “cleared” (i.e., the subject of a license or digitally smudged so as to be unrecognizable) for use in film and TV projects is a recurring one for producer’s counsel and giving advice to clients requires some consideration of the specific graffiti. As noted in the news report about the 30 Vies suit, it can be difficult to film in urban environments without catching at least some graffiti on-screen. The mere fact that the original painting of the graffiti might have been illegal is not a defence to a claim for infringement – it is not a condition for copyright protection that a work be “legal” (though a judge might be convinced to award only nominal or very low damages for infringement).

A more productive line for defending a copyright claim might be to force the platintiff to demonstrate that they are in fact the author and owner of the “artistic work” they are claiming has been infringed. Depending on the nature of the graffiti in question, it might be plausible to argue that the “work” lacks the requisite “originality” to warrant copyright protection (the more the graffiti is a mere “tag”, the less likely it will be to have the necessary originality). The viability of the “incidental inclusion” defence is contested, particularly in the context of dramatic productions, so it’s an open question whether it could plausibly be argued (see this post for further discussion of “incidental inclusion”). Another possibilty is to argue that whatever the use, it is de minimis and therefore not properly the subject of a legal claim – regrettably, Canadian courts have been less than forthcoming on the viability of de minimis defences in copyright actions so, again, this would be a somewhat novel approach (see this post for some further general discussion of the de minimis defence).

Of course, in the E&O context, both producers and insurers generally want to avoid the filing of a claim in the first place, rather than trying to strategize about how to defend against one which has already been filed. When it comes to graffiti, the only sure-fire way to avoid an E&O concern is to either entirely avoid filming it or to have the production’s art department create their own “graffiti” – though whether either of those options is entirely palatable will be left to the producer and their creative vision.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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