IP in Movies: Big Eyes (2014)

Every film is the result of the society that produced it.

Jean-Luc GodardSight and Sound, Summer 1968

Tim Burton · 2014 · Written by Scott Alexander and Larry Karaszewski

The film

Big Eyes tells the story of Margaret Keane (Amy Adams), the American painter whose portraits of children with enormous, mournful eyes became one of the commercial phenomena of the 1960s, and of her second husband Walter (Christoph Waltz), who sold them — and signed them. The action runs from San Francisco in the late 1950s to a Honolulu courtroom in 1986. Walter began selling Margaret’s canvases almost from the moment they met; he then began to claim them. As the paintings turned into posters, postcards and prints sold by the hundred thousand, the lie grew too large to retract, and Margaret went on painting in silence, behind a locked door, for more than a decade.

Burton films this as a story about a signature. It is also, for a lawyer, a story about what a signature is worth in law — and the answer turns out to depend entirely on which side of the Atlantic the question is asked.

“These children are part of my being”

The line the film gives Margaret is the whole of moral rights in seven words.

“Who is the artist?” — Big Eyes (Tim Burton, 2014). Directed by Tim Burton; produced by Tim Burton, Scott Alexander, Larry Karaszewski and Lynette Howell; written by Scott Alexander and Larry Karaszewski.

It is the same gesture as Flaubert’s Madame Bovary, c’est moi: the claim that the work is not merely produced by the author but continuous with them. French law gives that intuition a name and a machinery. Article L. 121-1 of the Code de la propriété intellectuelle vests in the author a right to respect for his name, his authorship and his work — the droit à la paternité — and makes it perpetual, inalienable and imprescriptible. Margaret could not have sold that right to Walter even had she wished to: the bargain by which she agreed to let him sign would have been void as to the name.

Literary history is full of the same arrangement. Colette’s first four novels, the Claudine series, appeared under the name of her husband Henry Gauthier-Villars — “Willy” — who was both a writer and a proprietor of the machinery that published them; her name was restored only much later. Michel Ocelot has Colette tell the story herself in Dilili à Paris (2018).

The film’s law is not the case’s law

Here the film and the litigation part company. The dispute was American, and in 1986 the United States gave a painter no right of attribution at all. There was no cause of action for having one’s authorship denied. Margaret could not sue Walter for taking her name off her work; she had to find a wrong that the American system did recognise.

She found defamation. In 1986 she sued Walter and Gannett Co., publisher of USA Today, in the federal court in Honolulu, over an article that repeated Walter’s claim to the paintings. The claim was Hawaii defamation, heard in federal court on diversity jurisdiction; Walter counterclaimed for copyright infringement, asserting that Margaret had copied his works.

The consequence of that framing deserves a pause. Authorship entered the case not as a right but as a fact — and more precisely as the truth defence to a libel claim. Margaret did not have to establish that she was entitled to be named; she had to establish that the statement naming Walter was false. The moral right had to travel in disguise.

The paint-off

Judge Harold M. Fong resolved the question in the most direct way available to him: he ordered both parties to paint, in the courtroom, a canvas in the disputed style.

“You are both going to paint!” — Big Eyes (Tim Burton, 2014). Directed by Tim Burton; produced by Tim Burton, Scott Alexander, Larry Karaszewski and Lynette Howell; written by Scott Alexander and Larry Karaszewski.

Margaret produced one in fifty-three minutes. Walter declined, citing a sore shoulder. It was not the first time he had failed to answer such a challenge: after Margaret first claimed the work on the radio in 1970, a reporter for the San Francisco Examiner staged a paint-off in Union Square, and Walter did not appear.

As a mode of proof, the courtroom demonstration is almost pre-modern, and it is exact in a way expert evidence rarely is. But it works only on one assumption: that authorship is a skill which can be re-performed on demand. It would prove nothing about a conceptual work, about a collaborative studio practice, or — the question now pressing — about an image generated from a prompt. Where making is no longer evidence of authorship, courts lose the cleanest test they ever had.

The judgment, and its unravelling

The jury awarded Margaret four million dollars. It is worth being precise about who lost what, because the newspaper did not: Gannett obtained a directed verdict and left the case, and Walter, whose counsel had withdrawn forty-nine days before trial, finished it alone at the defence table. His copyright counterclaim had already gone on summary judgment, for a reason with a certain poetry to it — the man claiming to have painted the pictures never produced the works he said had been infringed, and so could not establish substantial similarity.

Walter appealed. On 18 January 1990 the Ninth Circuit affirmed in part and reversed in part (Keane v. Keane, No. 87-1741). Everything but the money survived. Part VI held the award “so grossly excessive that it shocks the conscience”, found Margaret’s evidence of lost profits and reputational injury speculative, and remanded for a new trial on damages alone. Judge Wallace would have affirmed in full:

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. […] Walter concedes that he offered no evidence rebutting Margaret’s damages claim. I cannot say that this large verdict was “monstrous” or “grossly excessive.”

A note for anyone who goes looking for the decision: it is not, strictly, there. 893 F.2d 1338 is a table citation. The disposition is an unpublished memorandum, of no precedential force under the circuit’s rules — a small irony in itself. The case that settled the authorship of some of the most reproduced images of the century closed in a document the court chose not to publish.

What she actually won

Nothing, in money. Walter filed for bankruptcy, and the record of what followed is not flattering. In In re Keane, 110 B.R. 477 (S.D. Cal. 1990), the court found that he had concealed some $515,100 of artwork from the trustee, held him in civil contempt and ordered him imprisoned until he complied. He maintained until his death in 2000 that the paintings were his. Margaret, who died in June 2022 at ninety-four, said afterwards that the finding was what mattered and the money was not.

That is where the two systems converge in substance while diverging entirely in form. What Margaret obtained was, in function, a declaration of paternity — the very thing droit moral exists to deliver, and the one thing her cause of action was not designed to give. She got it as a by-product of a damages claim, and then the damages were taken away.

And today?

Two things have changed, neither as much as one might hope.

The Visual Artists Rights Act of 1990, in force from June 1991, added a right of attribution at 17 U.S.C. § 106A: the author of a “work of visual art” may claim authorship of it and prevent the use of her name on work she did not create. But the category is narrow — a painting existing in a single copy, or in a signed and consecutively numbered edition of 200 or fewer — the right endures only for the author’s life, and it may be waived in a signed writing. It would have covered Margaret’s original canvases. It would not have touched the posters and the prints, which is where the money was, and where the false signature did its real work.

The other route has closed. For a time § 43(a) of the Lanham Act looked like a general remedy for uncredited authorship, until Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), held that the “origin” of goods means the producer of the tangible article, not the author of the content it embodies. A Margaret Keane bringing her claim today would still be assembling it out of defamation, contract and state law, much as she did in 1986.

A last distinction

Walter Keane is easily filed alongside Guy Ribes, Han van Meegeren, David Stein or Wolfgang Beltracchi. The classification is too quick. A forger imitates another hand and lends his own work a name not his own, usually a dead master’s: the deceit runs from the object towards the attribution. Walter did the reverse. The paintings were entirely genuine; only the signature was false, and it was false in his own favour, at the expense of a living artist working in the next room. That is not forgery. It is the usurpation of paternity — precisely the wrong that droit moral was built to name, and that the law actually applied to it could not.

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