When Paintings Perform

Adam Gopnik in The New Yorker reported on the copyright story behind Night at the Museum: Battle of the Smithsonian, which I haven’t seen.  Among the pieces in the museum that come alive as part of the film, paintings literally leap off the walls:

There is an animated (and occasionally talkative) Degas ballerina, a Jackson Pollock poured painting, Edward Hopper’s “Nighthawks,” a Calder stabile, a weeping girl by Roy Lichtenstein, and even a Jeff Koons balloon puppy.

According to Shawn Levy, who created the movie (and its predecessor), the rights clearance process was doubly complicated because each artist (or estate) had to be approached about two uses:  displaying the work of art in the film, and animating the work of art as part of the film.  Levy noted:

The one artist who turned us down outright was Claes Oldenburg.  I wanted to use his clothespin.  I wrote Oldenburg a letter saying that his whimsy, the re-perception of the pedestrian, was much the same as what I was trying to do in the movie.  But he seemed umoved by the argument. 

Jasper Johns gave Levy permission to use “Three Flags” but not permission to animate it.  Levy:  “The nice thing was that they didn’t ask to monitor the visual effects.” 

Looking back at Section 106 of the Copyright Act, I can see questions of public display rights, public performance rights, and derivative work rights (I’m just keeping score at home, in case I want to use this as part of a question for my students, along with my Up observation from a couple of days ago).  I wonder about the monitoring question, though.  “[T]hey didn’t ask to monitor the visual effects.”  Does this suggest a calculated omission on the part of the rights holders?  Or a failure of imagination?    Was money left lying on the table?  Deliberately?