That sinking feeling: Is Titanic 3D a new work?

Titanic 3-D was released last month and so far it seems that its success could emulate that of the original 2-D release in 1997. However it is not all good news for the film’s makers. The Artists Rights Society (ARS), an organisation which represents the interests of a number of prominent visual artists including Picasso, has reportedly requested that the makers of the film again pay the late artist’s estate for the use of his painting ‘Les Demoiselles d’Avignon’ in the film. The painting appears in the film on a number of occasions and is even shown to have sunk with the ship. Art lovers, however, should not fear. The original hangs safely in the Museum of Modern Art in New York.

The use of a copy of the painting in the original 2-D film was licensed, albeit retrospectively. When, prior to production of the 2-D film the late painter’s estate refused consent to the use of the painting, film makers used it anyway. It was only after a challenge from the ARS that a licence was agreed. In spite of this earlier licence the ARS are now claiming that under US copyright law the 3-D version of the film amounts to a new work and therefore the previous licence does not cover the use of the painting in the 3-D version of the film. The president of the ARS, Theodore Feder, has reportedly gone so far as to say that he does not think his organisation will have ‘any difficulty’ in establishing that a new licence is required for the 3-D film. Mr Feder’s confidence may well be misplaced.

Under US copyright law should it be considered that the 3-D version of the film is a ‘derivative work’ of the 2-D film then separate copyright protection may exist in it and so a new licence may be required. The new ‘derivative work’ would, however, only consist of new material. In the case of a 3-D film which is for all intents and purposes the same as the 2-D version of the film, it is questionable whether there would be any new material. Unless, of course, the change of dimension from a 2-D to a 3-D film is itself considered to create new material. The idea that a 3-D version of a 2-D film can be a ‘derivative work’ is therefore something of a moot point, which perhaps can only be clarified by judicial or legislative intervention.

Another rather significant issue to be considered is the length of copyright protection afforded. Should a 3-D version be deemed to be a separate work to its 2-D counterpart, this could result in extendable copyright protection. As soon as the copyright protection afforded to the 2-D film is about to expire a 3-D version could be released effectively doubling the film’s protection.

Could we see a similar dispute arise in the UK?

UK copyright law differs significantly from that in the US. Aside from offering copyright holders in the UK different levels of protection (including the much lamented lack of a ‘fair use’ provision) the UK regime protects some types of work which are not ‘new’. In theory at least, two identical works can attract copyright protection where the authors arrive at them independently.

There is no requirement that in order to be considered a ‘work’ for the purposes of the Copyright, Designs and Patents Act 1988 (CDPA 1998), a film is ‘new’. Section 5B of the CDPA 1998 defines a film as:

‘a recording on any medium from which a moving image may by any means be produced’

So, it might seem that a 3-D version of a 2-D film is capable of being a work in its own right as it is a recording from which a moving image may be produced. In this case an argument could be made that for Titanic 3-D a separate licence for the use of the painting is required as the 3-D film is a separate work. Despite this, section 5B(4) of the CDPA 1998 makes clear that;

‘copyright does not subsist in a film which is, or to the extent that it is, a copy taken from a previous film.’

So, it seems that although a 3-D film is capable of being a work for the purposes of copyright it may not attract protection where it is primarily a copy of a 2-D work. Again, the issue of what amounts to a copy arises.

The UK’s copyright regime specifically provides that a shift in dimension from 2-D to 3-D in the case of ‘artistic works’ (this term includes paintings but not films) does amount to creating a copy (s 17(3) CDPA 1998). For example, a sculpture which is the same as a drawing can be deemed to be a copy of that drawing. A similarity in the case of films can perhaps be drawn. Under this line of reasoning the 3-D version would amount to a copy of the 2-D film and therefore would not attract copyright protection, so a separate licence for use of Picasso’s painting would not be necessary.

In UK as well as in US law the position as regards 3-D versions of 2-D films is still unclear. What is clear is that with the box office reception that that 3-D reissues receive, more and more films are going to be converted into 3-D format. It does then seem inevitable that disputes will arise, which may provide the perfect opportunity for judicial or legislative clarification of this issue. Until then careful negotiation and perhaps wide drafting of licences to include use in 3-D versions of 2-D films may be advisable.