As Jean-Luc Godard said, “Every film is the result of the society that produced it”. Cinema is a mirror of society. When the art of motion picture makes direct or indirect reference to a diversity of intellectual property (IP) issues — such as access to knowledge and social justice, freedom of creation and freedom of enterprise, counterfeiting or infringement, negotiation and settlement agreement —, this ascertains that IP has become tremendously important in our societies.
Big Eyes (2014)
Big Eyes tells the true story of the American artist Margaret Keane, famous for her portraits characterized by oversized eyes. The story takes place mainly in Hawaii and California from the 1960s to the 1980s. In the second half of the 1960s, eager for glory and money, Walter Keane had started selling Margaret’s works from the start of their relationship. He also claimed to be the author of works created by his wife. By the 1960s, Margaret’s portraits with big eyes had become extremely popular. Frightened by Walter’s violent threats, Margaret continued to paint while remaining silent for years.
“Who is the artist?” (Tim Burton, Big Eyes, 2014) © Director: Tim Burton • Producers: Tim Burton, Scott Alexander, Larry Karaszewski and Lynette Howell • Written by Scott Alexander, and Larry Karaszewski.
In the clip above, when the actress who plays Margaret says, “these children are part of my being,” it’s a bit like when Flaubert says, “Madame Bovary, it’s me.” These few words perfectly summarize the whole theory of the moral right of copyright. There have certainly been many other examples in history. At the beginning of the 20th century, the first novels of the French writer Colette bore the signature of her husband who was both a writer and the owner of a publishing house. In Dilili à Paris (2018), Michel Ocelot gives voice to the character of Colette who shares this episode of her life.
Margaret ends up separating from Walter. In 1970, in a radio interview, Margaret declared that she was the author of the paintings that Walter had falsely credited to himself. In 1986, she sued both Walter and USA Today in federal court. Margaret blamed the newspaper for publishing an article claiming that Walter was the author of the works. For his part, Walter had issued a counterclaim for copyright infringement. During the hearings, the judge ordered the parties to produce, in the courtroom, a work respecting the style proper to the disputed paintings, that is to say, characters with large sad eyes. The film depicts the character of Walter not as an artist, but as a forger who signs his name on paintings made by third parties. Big Eyes portrays him as an unsympathetic and talentless forger, far from other famous forger such as Guy Ribes, Han van Meegeren, David Stein, or Wolfgang Beltracchi.
“You are both going to paint!” (Tim Burton, Big Eyes, 2014) © Director: Tim Burton • Producers: Tim Burton, Scott Alexander, Larry Karaszewski and Lynette Howell • Written by Scott Alexander, and Larry Karaszewski.
The test helped to uncover the truth. The district court ordered Walter to pay Margaret $ 4 million in compensation (United States District Court for the District of Hawaii; Harold M. Fong, District Judge, Presiding; I could not find this decision; if you have it, I would be delighted to read it). Walter appealed the decision. In 1990, the Hawaii court was affirmed in part (Keane c. Keane, 893 F.2d 1338 (1990)).
In Keane v. Keane (893 F.2d 1338), the majority considered that the amount of the compensation was “so grossly excessive that it shocks the conscience”.
However, justice Wallace concurred:
I concur in all but part VI and would affirm. As pointed out by the majority, there was evidence of damage to Margaret as a result of the “USA Today” article. In addition to her anguish and humiliation, there was testimony that the defamatory statements could harm her reputation as a painter. Most importantly, there was evidence of “USA Today’s” readership of five million. The court instructed the jury that it could award “compensatory damages” absent any evidence of actual injury because the law presumes that defamatory statements injure reputation. The jury was told that compensatory damages are a means by which a plaintiff “can demonstrate to others the falsity of statements made by a defendant.”
I cannot say that the damages awarded here, while high, were “clearly unsupported by the evidence or grossly excessive, monstrous, or shocking to the conscience.” (…) Walter concedes that he offered no evidence rebutting Margaret’s damages claim. The jury could consider testimony concerning Margaret’s personal anguish, the injury to her reputation, and “USA Today’s” circulation of five million people. I cannot say that this large verdict was “monstrous” or “grossly excessive.”