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More often than not it is a single still that makes the biggest impression as it delights us with its visual composition to focus our emotions that have in fact been aroused by the whole motion picture. Passing various film-related gadgets on display, we see mugs with Marylin Monroe trying to deal with the blast from a subway vent (a scene from The Seven Year Itch) or posters with John Travolta and Samuel L. Jackson pointing their guns (a scene from Pulp Fiction).
However, copyright law is not clear about how to treat a still from the legal point of view. On the one hand, a case can be made for stills having to be protected on precisely the same terms as photographs. On the other, it is argued that a still is merely part of some greater whole (audiovisual work). It seems that finding the correct legal treatment here is extremely important in the context of further questions that may raised, such as “Who is actually the proper person to seek consent from if we want to use a film still?” or “How to identify the maker of the still?”. In accordance with Article 34 of the Copyright and Related Rights Act (“Copyrights Act”), referencing a work requires disclosing author’s full name and the origin of the work.
Should we attempt to identify the author of a specific still or should we just refer to authors of the whole film (director, screenwriter, cinematographer, etc.)? The law is silent on these matters and only says in Article 34 that the author and origin should be referred to in a way that is within the existing possibilities. This gave rise to a practice of making captions for stills by acknowledging the film’s title and the director’s full name, e.g. “a scene from Breathing Into Marble (Kvepavimas i marmura) directed by Giedre Beinoriute”.
Under Article 29 of the Copyrights Act, a work may use fragments of works communicated to the public or complete photographic works without the consent of the relevant rightholders, provided the first work is an original work in itself (thus, the mere right of quotation is not conditional on what classification is adopted).
Note however that quotation is only permissible “to the extent it is reasonable in light of its purposes, such as explication, debate, critical or scientific review, teaching, or rules of the genre”.
Thus, when writing about the most famous scenes with Sharon Stone, we are clearly permitted to use her still from The Basic Instinct because such reference is an important part that helps our article to achieve one of its fundamental purposes.
But it is much less clear if a film review can be illustrated by just any scene from the film. Quite often, the chosen scene will merely have a decorative function to serve as nothing more than an ornament to the published text so that the right of quotation does not apply. While that does not mean that a film review can never quote stills without copyright approval, such quotations must have reasonable grounds, especially if new consider that, by Article 35 of the Copyrights Act, fair use may not conflict with a normal exploitation of the work or unreasonably prejudice legitimate interests of the author.
On top of all those controversies, there is also the issue of permissibility of disseminating the likenesses of the actors visible in the still. In accordance with Article 81(2)(1) of the Copyrights Act, no permission is needed to communicate to the public the image of a publicly known person if the image has been made in connection with the person’s profession. While the law does not define “publicly known persons”, the category should rather be taken to generally include also actors.
We can see now that using single film stills can (and does) give raise to quite a number of controversies if the use is not based on a contract with the holder of copyrights in the film.
Check what we refer to:
- The Copyright and Related Rights Act of 4 February 1994 (Journal of Laws of 2017, item 880) (“Copyrights Act”, art. 1, 29, 34, 35, 81).