Copyright law allows the owners of copyrighted works to control or prevent the use of those works by others. The Fair Use Doctrine sets limits on copyright owners’ ability to prevent certain unauthorized uses, such as the inclusion of a copyrighted image in a news report or the use of a copyrighted film clip by a film critic. Courts have also recognized an exception to copyright infringement when the unauthorized use of a copyrighted work is deemed “de minimis,” or too minor and trivial to merit court intervention. A recent New York court ruling, Gayle v. Home Box Office, Inc., No. 1:17-cv-05867, mem. op. (S.D.N.Y., May 1, 2018), addressed a de minimis claim in a case alleging copyright infringement. Courts have reached similar rulings in California intellectual property cases involving music, software, and other copyrighted works.Federal law allows copyright protection for “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). The owner of a copyrighted work has the exclusive right to use the work for a wide range of purposes, including making and distributing copies of the work and creating new derivative works. Id. at § 106. The Fair Use Doctrine allows certain unlicensed or unauthorized uses, however, “for purposes such as criticism, comment, news reporting, teaching…, scholarship, or research.” Id. at § 107. The statute identifies several factors to consider in determining whether Fair Use should apply, including the “substantiality” of the infringing use.
The de minimis exception gets its name from the legal maxim “de minimis non curat lex,” or “the law does not govern trifles.” It is partly derived from the “substantiality” element of Fair Use, but it is not necessarily an example of Fair Use. The Ninth Circuit has held that “a use is de minimis only if the average audience would not recognize the appropriation.” Newton v. Diamond, 388 F.3d 1189, 1193 (9th Cir. 2004). The Second Circuit has held that the de minimis exception involves copyright infringement that is “so trivial that the law will not impose legal consequences.” Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 74 (2d Cir. 1997).
The Newton case involved the use of six seconds of a copyrighted musical recording as a “sample” in a hip hop track. Ringgold involved the use of copyrighted artwork as set decoration on a television production. The alleged infringement in Gayle involved a television production that briefly showed the plaintiff’s copyrighted artwork in the background of a scene. The court in Gayle found that the de minimis exception applied. The copyrighted work, a piece of graffiti art in New York City, appears in the background of a scene in one episode of an HBO program. According to the court, the work “appears on screen for no more than two to three seconds.” Gayle, mem. op. at 5. The court rejected the plaintiff’s claim that the defendant “‘exploited & capitalized’ on the ‘brand name recognition’ of his trademark.” Id. at 1. It notes that the work “is, at best, shown in the background at an oblique angle and in low, uneven light such that it is ‘never fully visible,’ let alone legible.” Id. at 5.
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Copyright Claim Dismissed by Ninth Circuit for Lack of “Substantial Similarity” Between Works, Pleasanton Business & Commercial Law Blog, June 14, 2018
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Jury in California Federal Court Rules for Google in Software Copyright Dispute, Pleasanton Business & Commercial Law Blog, June 15, 2016