Big Eyes: An IP perspective?

Posted on: January 6, 2015 by

The new Tim Burton film, Big Eyes, was released over the holidays. It tells the story of American painter Margaret Keane (née Hawkins), whose works for the most part depicted young waif-like girls with enlarged, often tearful, eyes. Throughout the 1960s, as the paintings became increasingly popular, Margaret’s husband, Walter, would pass them off as his own. The paintings were all signed ‘Keane’. As the character of Walter (played by an over-the-top Christoph Waltz) says to Margaret, ‘I’m Keane. You’re Keane… What’s the difference?’

The difference is that Margaret (compellingly portrayed by Amy Adams) appears as the true creator of the works – in simple copyright terms, their ‘author’ – while Walter was getting all the credit. He was a good marketer and a smooth talker. And he was savvy: after realising that gallery-goers were more keen on picking up posters than buying original works, he began selling mass-produced copies. As one character says, ‘He sells paintings. And he sells pictures of the paintings. And he sells postcards of the pictures of the paintings.’ But of course it was all thanks to his wife’s quiet and personal creative force.

Without spoiling too much of the plot, the film ends with a courtroom sequence that pits fraudster against creator, husband against (ex) wife. In many ways, legal questions abound throughout. Who for example owned the copyright in the countless works sold as Walter Keanes? The answer then may not have been as simple as the answer now, since under US law at the time, copyright subsistence required notice and registration. In the film, Walter appears to understand the strength of Margaret’s position, saying after an argument that he wants her to ‘assign’ to him all rights in the paintings. An assignment would of course affect the status of all those postcards…

This all happened before the Visual Artists Rights Act of 1990 (and the Californian precursor of 1980), so at least while the fraud was ongoing, Margaret would not have had any moral rights (including the right of attribution) in the works. Perhaps a claim for reverse passing off may have succeeded? There was a real-life trial in this affair in 1986, long after the parties had split and gone their separate ways, although the claim by Margaret against Walter was principally one for defamation. Walter had said some nasty things about her reported in a USA Today article. Interestingly enough, a copyright counterclaim was brought against Margaret by Walter. It appeared that Walter had the works copyrighted under his name. He alleged that Margaret had infringed his copyright in the works by selling copies later on, a stance that has since been supported by his surviving daughter. In the end, Margaret won on defamation and Walter failed to prove his copyright claim.

Big Eyes is worth seeing for the art law implications alone. As a film it is decent. It begins intriguingly, but unravels somewhat near the end. For those who love the quirkiness of the director, there isn’t too much of it to be found. Apart, of course, from the ‘big eyes’ themselves.