Basset v. Jensen

Artist prevails on summary judgment against production company after use of her home as set for pornographic films resulted in unauthorized use of her copyrighted works appearing in background of those films.

Artist Leah Bassett sued production company Mile High Entertainment and its representatives after she discovered that defendants had rented her house on Martha’s Vineyard and used it to film a number of pornographic films without her knowledge or permission. Bassett alleged a number of contract and tort claims, including breach of contract and infliction of emotional distress, as well as copyright claims based on the presence of a number of her copyrighted works visible throughout the films, including paintings and wall hangings. 

After the court ruled that defendants could not rely on a fair use defense, Bassett moved for summary judgment on liability, and in response to the court’s decision not to screen the films, provided a detailed accounting of the presence of her copyrighted works in defendants’ films. Defendants countered that the presence of any of Bassett’s copyrighted works was “de minimis and therefore non-infringing.” 

Based on Bassett’s accounting, which included hundreds of pages of screenshots and timestamps, the court found that at least 10 of defendants’ films featured her works in a greater than de minimis capacity, a standard meaning “a substantial majority of the copyrighted work is ‘clearly visible’ for at least 30 seconds in aggregate.” Accordingly, the court granted summary judgment on copyright liability and ordered a jury trial on damages for Feb. 1, 2021. The court ordered Bassett to submit an expert report for the appropriate amount of damages for works that appear in each film for greater than de minimis capacity.

Summary prepared by Melanie Howard and Alex Inman