If you found out that your residential tenant had used your vacation home to shoot 9 pornographic movies, your first thought would be to sue for breach of lease, not copyright infringement. Yet that is exactly the case that is playing out in a Federal District Court in Massachusetts. The case, Bassett v. Jensen, 1 of course includes numerous other causes of action, including breach of contract, trespass, negligence, civil conspiracy, civil fraud, infliction of emotional distress, interference with advantageous business relations, civil RICO , and defamation, but the most intriguing claim is for copyright infringement. For, unbeknownst to the production company, the artwork on the walls of the home were created by the owner of the house, and are highly visible in the resulting movies.
The basic facts are not in dispute:
“In October 2014, [Plaintiff] Angela Bassett signed an agreement with [Co-Defendant] Joshua Spafford to lease her Martha’s Vineyard residence from October 4, 2014 until May 15, 2015. The lease was ‘for use as a personal residence, excluding all other uses.’ (Citation omitted) The lease also provided that the residence was to be ‘used and occupied only by the members of the Tenant’s family.
Spafford had come to Martha’s Vineyard to work as a still photographer and camera man for Monica Jensen, an adult film director with the professional pseudonym of Nica Noelle. Jensen was directing pornographic films for distribution by Mile High Distribution, Inc. (“Mile High”), a Quebec-based adult film distribution company.
Spafford initially rented Bassett’s house for his own residential purposes, believing that filming would take place at other locations on the island. However, Jensen soon pressured him to use Bassett’s residence as both a filming location and as housing for cast and crew. Jensen promised to cover the property’s rental costs and threatened to fire Spafford if he did not agree.” 2
“According to Defendants, Bassett’s home and household items appear in scenes from nine films that were distributed by Mile High, as well as still images accompanying five other films. Scenes showing Bassett’s home also appear in two compilation titles that were distributed by Mile High. Bassett asserts that she has found twenty-one films featuring scenes or stills from her house. In addition, cast members took promotional photos at the property that they posted on their own social media accounts.” 3
“On September 30, 2016, a year and a half after learning about the pornographic movies, Bassett filed three certificates of registration with the United States Copyright Office under the category of ‘Unpublished Collection.’ The collections are (1) ‘Bathroom 1 Drawing, et al.,’ which comprises twenty-one drawings, paintings, and photographs; (2) ‘Handsewn and Designed Slipcover 2, et al.,’ which comprises twenty-two works, including handsewn slipcovers and pillows, wall hangings, and collages; and (3) ‘Table 1 Hand-painted Top, et al.,’ which comprises ten works, including painted tabletops, a fireplace, and items of pottery.” 4
Can the use of protected artwork in the background of a motion picture be an infringing use? Apparently, it can.
The case holding this is Ringgold v. Black Entertainment Television. 5 There, the Second Circuit reversed a District Court ruling of no infringement because the use of a large poster as set decoration in a motion picture was de minimus. The Second Circuit ruled that when the copying is undisputed, the inquiry is to “whether the admitted copying occurred to an extent sufficient to constitute actionable copying, i.e., infringement.” 6 And of first importance is “the observability of the copied work — the length of time the copied work is observable in the allegedly infringing work and such factors as focus, lighting, camera angles, and prominence.” 7
“From the standpoint of a quantitative assessment of the segments, the principal four-to-five-second segment in which almost all of the poster is clearly visible, albeit in less than perfect focus, re-enforced by the briefer segments in which smaller portions are visible, all totaling 26 to 27 seconds, are not de minimis copying.” 8
Returning to the case at issue, the Court ruled that the amount of use in the 9 films was insufficiently detailed by the Plaintiff to grant summary judgement at this time, and directed the Plaintiff to file a more detailed statement. 9
But de minimus use is not the only defense raised. The Defendants also assert (all together now) “fair use.”
Interestingly enough, the Defendants do not contend that the inclusion of Plaintiff’s artwork in their porn film is “transformative,” perhaps because this argument was raised and rejected in Ringgold where the purpose of the poster and the use in the film, “decorative effect” were exactly the same. 10 Here the Court notes that “[s]imilarly, here, Bassett’s works were featured in Mile High films as decorative elements, precisely how Bassett used them in her home. Furthermore, the use here was “of a commercial nature,” which weighs against fair use in the first factor.” 11
As to the second factor, the nature of the work used, the Court finds that since Plaintiff’s work are “artistic rather than factual” 12 tips this factor in favor of the Plaintiff.
As to the “amount and substantiality” of the work used, the Court rules that “some of Bassett’s copyrighted works appear in full in screenshots from Defendants’ films. This factor weighs in Bassett’s favor.” 13
As to the last factor, since Plaintiff never intended to sell her work, there is no negative market effect, and this tips in favor of the Defendant.
So, Defendant, losing three out of four factors, and even after “[b]alancing the factors, Defendants are not entitled to summary judgment on fair use.” 14
So, once again, we see that a simple request for permission, albeit one surely to have been rejected, would have saved a lot of time, expense, and attorney’s fees down the road.