Copyright Infringement: The De Minimus Defense Part 1
Intellectual Property Attorney Timothy B. McCormack examines the use of the copyright De Minimus Defense in Part 1 of 2.
The topic of “de minimis” copying is particularly interesting and somewhat ironic, as seen in the following threshold question:
When is copying someone’s work not actually “copying”?
WHAT IS DE MINIMIS USE? (http://en.wikipedia.org/wiki/De_minimis)
The law is fond of Latin phrases, and de minimis is no exception.
De minimis is a shortened version of the phrase “de minimis non curat lex” which translated means “the law does not concern itself with trifles.”
When applied to copyright law, de minimis basically means that courts are not going to concern themselves with trivial copying. Let’s look at some real-life examples.
Intellectual Property is one of these issues that touches everybody. This series is designed to help bring light to what this law is, and how it works.
Grahh! That’s Troll for “Hello.” While we sit here today to discuss copyright infringement, our camera is making a copy of the Troll. A copyrighted work. If we don’t have permission of the artist, we’re committing copyright infringement. Because we’re making a copy.
Now there is a defense. And that’s what we’re going to talk about today. It’s called de minimis copying. De minimis is Latin for “trivial matter.” Now as a threshold question I’ve got to ask: Is our copying of the Troll a trivial matter?
To answer that question we need to understand two things. First, what is the law of de minimis copying? And second, how does this effect the artist’s rights?
The question of de minimis copying itself is somewhat ironic. When is copying not copying not copying?
I swear, only lawyers could come up with this stuff.
Let’s look at an example of how this works. Remember the movie “7” with Brad Pitt and Morgan Freeman? Well, about one hour and eighteen minutes into the movie some photographic transparencies show up in the background. The photographer who took those pictures sued New Line Cinema for copyright infringement. Said, “You made a copy of my pictures in your movie.” New Line said, “Well, we made a copy, but we think it’s de minimis.” They argued it was only in the shot for about thirty-five seconds. They were partially obscured. Somewhat out of focus. Never a primary part of the movie or the shot. And an average lay-observer would not be able to identify the photographer’s pictures from that scene. The court found it was de minimis and okay.
Another example is in the movie, “What Women Want”, with Mel Gibson. In that movie there is a scene with Mel Gibson and a pinball machine. The pinball machine is in the background. The copyright owner of the pinball machine sued the movie company. Said, “You made a copy of my copyrighted work without my permission. Like in “7”, the movie company said, “Yes. Your copyrighted work is in our movie. But the use is de minimis.” The court looked at it and said the Silver Slugger was out of focus. Never a primary shot. Not mentioned by the characters in the movie. The court said an average lay-observer would only recognize this as a generic pinball machine and not as the specific work of art related to the Silver Slugger. And so it was de minimis use.
The de minimis argument does not work all the time. In the sitcom “Rock” a copyright quilt was shown in the background. The quilt in this case appeared in the shot for about thirty seconds. The artist of the quilt sued for copyright infringement. The defendant said, “Hey, this is de minimis.” The court disagreed. The court found the quilt was displayed in its entirety in the background of this shot. It showed up for thirty-six seconds. And the art was recognizable. The characters in the art were recognizable. And the artistic style of the artist himself was recognizable by even a lay-observer. And therefore, it was not de minimis use.
In summary, de minimis use really seems to come down to a few factors. Is the background art in focus? In frame? How much of it is there? And, would a lay-observer understand whatever the art is to be an artistic work itself?
But what about the Troll? In the next episode of The Trade Secrets we will talk to one of the Trolls artists. And find out if our use of the Troll is indeed de minimis.