Copyright Infringement: The De Minimus Defense Part 2


Intellectual Property Attorney Timothy B. McCormack examines the use of the De Minimus Defense in Part 2 of 2


We left off looking at how the de minimis defense effects artists’ rights and whether our use of the Troll was indeed de minimis.

Before we talk about the law as it applies to our shots of the Troll, let’s talk to one of the artists who helped make this thing.

Professor Badanes, do you ever license the Troll to educational and non-profit organizations?

Professor: Image use of the Troll is completely free to non-profits. If we can help out community groups we’re glad to do it.

What about corporate or for-profit use?

Professor: That’s a little bit more of a difficult question. And one of the reasons we got the copyright was so we could control the image of the Troll and that it wouldn’t be used for stuff that we weren’t interested in having him represent. But we’re not opposed to it. We have made deals with films for location shoot. And if a product is interesting, or a community product, we’re glad to talk to developers about doing something.

What’s the Hollywood day-rate to have the Troll in a movie?

Professor: The basic day-rate for the Troll starts at $1,500 a day, similar to many movie locations.

Do you have any examples of when the Troll was used for a commercial product?

Professor: Well, Bartell Drugs asked if we could do a Chia Pet. And actually the Chia people contacted me to get permission for the copyright and I said, yes, we’d be interested. It sounds great. Sounds like a lot of fun.

What do you do with the money that you earn from licensing fees?

Professor: Well, they’re for artists and the Fremont Arts Council. So it’s a 5-way split. The Arts Council portion goes for maintenance. Once a year there’s a big clean-up here. But mainly it’s vandalism and repairs.

What happens when somebody infringes the Troll, for-profit, without paying?

Professor: We discourage that. That’s one of the reasons we got the copyright. We often will contact them. We’ll ask them to cease and desist. Usually they understand that once you explain that it’s a copyright image. If they’re not, we often have had to hire lawyers.

When we started this segment I asked the question, is our copying of the Troll a trivial matter? The Troll has been with us the whole time. In a sense, our camera has captured him. He’s been in the background. He’s been in focus. He’s been out of focus. He’s been subjects of primary shots, secondary shots. In short, our use is not trivial. Without the artists’ permission we would be denying them one of their fundamental copyrights. The right to control their work. How it’s used. And who uses it. This is definitely not a trivial matter.

From Seattle, Washington and the Fremont Troll.