A major Hollywood studio commissions a painting from a local artist during the filming of a soon-to-be hit, decides it no longer wants the canvas and trashes it. Is anybody wronged? Does the creator of the piece have the right to protect his art from oblivion - even if he doesn't own it?
In a happening cultural city like this, a lot of artists will want the answer to this question. But they're going to have to wait for an upcoming ruling on Joe Fleming vs. Paramount.
Fleming, a painter, was contracted by MG Films, the Toronto-based subsidiary of movie giant Paramount, to create background paintings for the 2004 Lindsay Lohan hit Mean Girls.
The relationship between Fleming and the company began cordially enough when MG Films hired him to paint a mural and a "hero" portrait, to be used as backdrops for the film.
The company agreed to pay Fleming $15,000, but the mural was eventually dropped from the project, and Fleming ended up getting $8,025 for the hero painting, according to court documents. These documents indicate that another $3,745 was paid for the rental of 11 other paintings and various props.
Fleming's problems began when he asked that the hero portrait, which depicts Lohan and two other actors from the film, be returned after the film finished shooting. He was told by MG Films that it had been destroyed.
While MG claims in court documents that Fleming sold them the hero painting, Fleming insists his work were merely rented. Fleming filed suit, seeking $10,000 in damages. "They're trying to screw me around," he says.
A small claims court judge sided with Fleming earlier this summer after lawyers from Goodmans LLP representing MG Films failed to show. More recently, however, the company won a re-hearing of the case, claiming in affidavits filed with the court that there'd been a mix-up around scheduling.
MG says in its statement of defence that it's "unreasonable" to suggest it would pay Fleming $8,000 for rental of the hero painting, "given that the defendants also rented 11 other paintings from the plaintiff for $3,745."
MG's statement goes on to deny that the hero painting could have been the subject of a rental agreement "given that the content of the painting is of the likenesses of three of the actors from the film."
And, as MG "do not possess the right to contract on behalf of the actors, the defendants could not enter into a rental agreement that gave the plaintiff [Fleming] unrestricted ownership and control of the hero painting once the film was completed."
But even if the court finds that MG did purchase the art in question and did not rent it as Fleming claims, his lawyer, Nancy Parke-Taylor, says there are copyright and moral rights that prevent the wilful destruction or alteration of a work of art without the artist's permission.
A landmark case that dealt with this very issue was won by artist Michael Snow, who took the Eaton Centre to court after the mall dressed his Canada geese sculptures with red ribbons without his permission one Christmas. Snow won on the grounds that he holds moral rights to his work.
"Even if you own a work of art, if the artist has copyright on it you can't do whatever you want with it," says Parke-Taylor, who has since been dropped by Fleming because he can no longer afford her services.
While facing off against a powerhouse like Paramount may seem foolhardy, Fleming says he wants to send a message on behalf of other artists that they can't be treated unfairly.