Wikilegal/De Minimis Use of Protected Works under US Copyright Law

What is De Minimis?Edit

De minimis is a legal term that refers to small or trivial matters with its origins in the expression de minimis non curat lex, “the law does not concern itself with trifles.”[1] This idea manifests itself in many fields of law including, but not limited to, tax law, property law, criminal law, and copyright law. The purpose of this WikiLegal article is to provide more information about the ways in which de minimis use of copyrighted works is generally permitted under U.S. copyright law.

What Constitutes De Minimis Use?Edit

The key question in a copyright infringement claim is whether the use of the copyrighted work is substantially similar to the original. This substantial similarity standard has two components: quantitative (whether the use exceeded a threshold, e.g., in terms of time or size) and qualitative (the significance of the copying).[2]

These days, the term de minimis in copyright is most often used to show that a work does not infringe the copyright of another older protected work because the amount of copying is too small to matter. Courts traditionally use something similar to the standard set by the Second Circuit's Ringgold v. Black Entertainment Television, Inc., decision, which asked whether the “copying has occurred to such a trivial extent as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying.”[3]

The opinion in Ringgold goes on to specify that the threshold in the second interpretation involves both quantitative and qualitative analyses: a) the amount of copyrighted material that was copied, and b) the “observability” of the alleged infringed material—including how long it was visible, and other factors such as “focus, lighting, camera angles, and prominence.”[4] Courts often refer to the qualitative (or “observability”) part through an “ordinary observer test” which assesses whether “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.”[5]

Other federal circuit courts have attempted to elaborate on de minimis use with other language. For example, the Sixth Circuit in Gordon v. Nextel Communications provided two steps for a de minimis analysis, with the first step examining the amount of the original copyrighted work used and the second step determining “the observability” of the work. [6] This second step is analyzed by measuring “the length of time the copyrighted work appears in the infringing work (the longer the period of observability, the greater the chance that a use is not de minimis).”[7] This two-step process was ultimately shaped almost entirely by the Second Circuit’s decision in Ringgold.[8]

Successful and Unsuccessful De Minimis DefensesEdit

Successful De Minimis UseEdit

Most de minimis claims can demonstrate that the copying of the original work is brief or that the amount of the work is minimal. In other words, successful de minimis arguments generally either emphasize the minimal presence or use of the copyrighted work or emphasize that the copyrighted work appears in a way that it is even difficult to discern its contents fully.

Most of the existing case-law tends to rely on a court examining whether the copying was sufficient or insufficient compared to the “threshold” of being substantially similar to the original, copyrighted work. For example, in Vault Corp. v. Quad Software, Ltd., the Fifth Circuit held that only 30 characters in over 50 pages of code could be found to be de minimis in nature.[9] In Kanongataa v. Coed Media Group, LLC, a man sued companies that used a screenshot from a recording he had taken of his wife’s delivery as part of a news story. The Southern District of New York dismissed the case on de minimis (and fair use) grounds because, as Coed explained, “a single video frame is tantamount to approximately 1/30 of a second, and out of its 45-minute total length, the screenshot constituted .001235 percent of the video.” [10]

Further, in a case that involved the background of a scene from the film Seven, the Second Circuit found that the plaintiff’s photographs were visible for 35 seconds total, and that the photographs “were not displayed with sufficient detail for the average lay observer to identify even the subject matter of the photographs, much less the style used in creating them.” [11] In two cases involving public art, murals and graffiti, courts found that de minimis applies because the art in both cases appeared fleetingly and, most importantly, was in the background, obstructed, and not in focus.[12]

Unsuccessful De Minimis ArgumentsEdit

Not all arguments claiming fleeting or brief use of a copyrighted work succeeded on de minimis grounds. Courts appear to be unwilling to accept de minimis arguments when a copyrighted work is i) centrally and clearly visible, ii) unique in nature, and iii) when the copyrighted work is used in the same manner as the original creator intended, such as displaying a piece of artwork for the public and then doing the same in a photograph of the artwork. The Second Circuit relied on centrality and visibility in Ringgold when refusing to accept a film production company’s de minimis defense after it found that the plaintiff’s quilt appeared nine times in a five minute scene for a total of 26.75 seconds.[13] The decision centered in large part on the fact that this plaintiff’s work was “central and shown clearly enough for an average lay observer to notice it and discern its contents,”[14] and that the work in question had a “qualitative connection” to the scene in which it was used.[15]

Similarly, in Davis v. Gap, Inc., Davis, an eyeglass designer, sued Gap for dressing a model in one of his eyeglasses. When Gap asked to dismiss the appeal because the appearance of the glasses was de minimis, the Second Circuit denied the request on the grounds that: 1) Davis’s glasses had a particularly unique design; and 2) the eyeglasses are highly noticeable in the advertisement.[16]

In another photography case, a company reposted a photo that a photographer had taken of a model wearing the company’s clothes. The company had later shared that picture and did attribute credit to the photographer in its social media post. After finding out that the company had posted his photograph, the photographer sued in court alleging that the company had violated his copyrighted work.[17] Though the company reshared the photo in its entirety, without any component of it obscured or modified in any way,[18]it tried to argue that the usage was de minimis. However, the court ultimately rejected this and said there was nothing de minimis to simply reposting someone’s picture just because it was on social media.[19]

In Hirsch v. CBS Broadcasting, the District Court for the Southern District of New York further stressed that even a few seconds can be enough for de minimis not to apply.[20] CBS used a screenshot that lasted 2 seconds of Hirsch’s photograph in a multi-part series but the district court said that the briefness is not relevant.[21] When they examined the quantitative threshold of substantial similarity (and thus whether the usage was de minimis), the court said that assessment of the quantitative threshold must “occur in the shadow of their [the original work and the work that is being challenged] qualitative nature”, meaning that an almost full display of an original work, even if for less than three seconds, cannot be de minimis use.[22] Instead, the court focused on the fact that the photograph was reproduced almost entirely and that it was featured prominently. [23]

Circuit Splits on De MinimisEdit

It is critical to note that there are differences in how various circuit courts think about de minimis use. One of the most apparent differences appears to be in how analytical or subjective a circuit tries to be when it measures de minimis use. For example, some circuits use the Second Circuit’s approach from Ringgold to measure how significant or insignificant the copying is, while others, like the Ninth Circuit, say that use “is de minimis only if the average audience would not recognize the appropriation.”[24]

Both of these perspectives are ultimately concerned with determining if the amount of copying was too much or went too far in the eyes of the court. The Ninth Circuit focuses on the qualitative similarities: asking whether the copied work is noticeable and whether an “average audience” can recognize the copying. (In other words, if an ordinary person could not recognize it, then de minimis applies.) The Second Circuit’s Ringgold-style reasoning obviously also wants to answer whether the copying went too far, but the court instead tends to focus extensively on quantitative conclusions: how visible the copyrighted work is, how fleeting or focused it is, and so on. Some circuits even use language from cases that other circuits have ruled on. Therefore, consider de minimis arguments in multiple contexts and proceed with your decision-making based on what makes the most sense in the particular situation.

Most of the circuit court cases involving de minimis use end up engaging very similar analyses, though the circuit split is most dramatic when it comes to music sampling,[25] with some circuits allowing de minimis arguments for brief sampling clips and others maintaining that de minimis cannot apply.

ConclusionEdit

Overall, most commonly de minimis defenses surface in litigation that involves, for example, a photograph or visual work in a video clip, or in music sampling (which is out of scope for this post). Despite this, we can still use and apply the sets of questions and considerations courts have resorted to to guide our own analyses.

De minimis arguments for copyright tend to be highly fact-specific, depending on the circumstances of the situation. Begin first by:

  • Analyzing the “quantitative” component of substantial similarity, considering factors like the length or amount of copying;
  • Weigh qualitative concerns as well which can include considerations like the prominence or clarity of the copyrighted work (e.g., how centered the work is, if it’s blocked by other images in the photograph, etc.).

If a copyrighted work is particularly unique (Davis v. Gap), reproduced fully (Hirsch), is used in the exact manner it is supposed to be used (Ringgold), or is prominent or quite visible in the background, then de minimis may not succeed. However, copyrighted work that truly is minimal in nature (Vault Corp.), obscured or in the background (LMNOPI; Gayle), then it seems likely that de minimis would apply.

ExamplesEdit

Example 1Edit

For a helpful illustration, consider an article that discusses a city and uses an image of a skyline of that city, one that is well-lit and is not blurry. The skyline picture includes in it a billboard for a company which takes up far less than a tenth of the image.

One could likely make a convincing de minimis argument because:

  • The content of the article (i.e. about a city) does not have anything to do with the company that would say their copyright is being infringed;

There is no particularly unique quality to the billboard (if there is, which is a subjective examination, then the Davis v. Gap circumstances may block de minimis defense); and

  • The image itself is quite small (and let us assume that the name or image of the company is not fully visible in the skyline picture) and is neither the focus of the picture nor its prominent part.

If someone is to crop this image and focus on a segment of the city skyline but the billboard now occupies half of the picture (to clarify, it occupies half of the picture but it is reproduced fully), then de minimis is less clear, and one needs to consider other matters such as the qualitative similarity or the observability and should also consider cropping or minimizing the billboard to strengthen a de minimis argument.

Example 2Edit

Consider the following photo from Times Square, which presents a close case in which de minimis is not certain (photo is from Wikimedia Commons):

A helpful breakdown of analyzing this photo for de minimis use may be:

  1. First, identify potential copyrighted works that appear in the background or corners of the photograph. If they occupy a small percentage of the photo, are difficult to read, or are obscured at all, then we have strong de minimis arguments to make for these items.
  2. Then consider pieces that are not obscured (or at least not highly obscured) and easy to read. Think about the following:
  • The prominence of the item compared to the overall photograph (e.g., does it appear right in the center? Does this item have a unique quality to it like the eyeglasses in Davis?)
  • The approximate percentage that the item(s) occupies in the photograph.
  • Could a specific piece be cropped out of the photo without ruining the image?
  • The nature of the Wikipedia entry (e.g., if the article is about Times Square and we are dealing with the name of a company that is fully visible, then the image is not necessarily used in the same way it is intended to).

This image is a difficult one to determine because it contains many elements, none of which are especially important to the overall photo, but one could argue that the very central posters with copyrighted images do feature prominently and as a large part of the overall photo. (As an aside, the image can almost certainly be used under the fair use doctrine and can therefore be hosted on those Wikimedia projects allowing fair use images, but it is possible that it is out of compliance with Commons policies and should be hosted locally on another Wikimedia project instead).

Example 3Edit

Consider this photograph from the National Portrait Gallery, which is still open to some debate but leans more strongly towards a de minimis finding:

A few questions and points to consider:

  1. What captures your attention first?
  2. Work from the background, edges, and corners of the photograph first. If they are obscured (e.g., the artwork on the back wall) or occupy only a small part of the photograph, then there is a case to make for de minimis use.
  3. Consider other works that are obscured or difficult to see because they are at an angle in the photograph.
  4. Finally, ask yourself whether the photograph can be edited or cropped out without completely ruining it.

Here, most of the small and surrounding artwork is clearly de minimis. The painting of Michelle Obama is not fully certain and reasonable minds could differ about the following reasoning, but it is likely de minimis because of the angle and focus of the overall photograph. The photo would likely be much the same if the painting were blurred or removed from the image because the main focus is on the crowd viewing the picture.

ReferencesEdit

  1. DE MINIMIS NON CURAT LEX, Black's Law Dictionary (11th ed. 2019).
  2. Irina Manta, Shyamkrishna Balganesh & Tess Wilkinson-Ryan, Judging Similarity, 100 Iowa L. Rev. 267, 274 (2014).
  3. Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 74-5 (2nd Cir. 1997); Manta, supra note 2, at 265. The Ringgold opinion also mentions two other definitions, “[f]irst, . . . a technical violation of a right so trivial that the law will not impose legal consequences. . . Third, de minimis might be considered relevant to the defense of fair use.” Ringgold, 126 F.3d at 74-5.
  4. Ringgold, 126 F.3d at 75.
  5. Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2nd Cir. 1995). The Ringgold case also uses this “observer” test to assess the qualitative component.
  6. § 7:27.50. De Minimis, 1 Copyright Law in Business and Practice § 7:27.50 (rev. ed.)
  7. Id.
  8. Id.
  9. Vault Corp. v. Quaid Software, Ltd., 847 F.2d 255, 267 (5th Cir. 1988).
  10. Scott Sholder & Sara Gates, This is Not Another Fair Use Article: The Implied License and De Minimis Use Copyright Defenses, 13 No. 2 Landslide 8 (Nov./Dec. 2020).
  11. Sandoval v. New Line Cinema Corp., 147 F.3d 215, 218 (2nd Cir. 1998).
  12. LMNOPI v. XYZ Films, LLC, No. 18-CV-5610-LDH-VMS, 2020 WL 1914888, at *1, *2-5 (E.D.N.Y. Mar. 30, 2020); Gayle v. Home Box Office, Inc., No. 17-CV-5867, 2018 WL 2059657, at *1, *2-4 (S.D.N.Y. May 1, 2018).
  13. Ringgold, 126 F.3d at 76-7.
  14. Scott Sholder & Sara Gates, supra note 10.
  15. Id.; Ringgold, 126 F.3d at 77.
  16. Davis v. The GAP, Inc., 246 F.3d 152, 176 (2nd Cir. 2001). In this case, the court also wrote that because the “eyes are naturally a focal point of attention . . . the viewer’s gaze is powerfully drawn to Davis’s [the designer] creation.” Id.
  17. Mark Iantosca v. Elie Tahari, Ltd., 2020 WL 5603538 (S.D.N.Y. 2020), at *1, *1.
  18. To see the photo in question, see Aaron Moss, Social Media Reposting and the “De Minimis Defense”, Copyright Lately (Sept. 24, 2020), available at https://copyrightlately.com/social-media-reposting-de-minimis-defense/.
  19. Iantosca at *6. The court also said, on the question of attribution, that “attribution is not a defense against copyright infringement.” Id.
  20. Hirsch v. CBS Broadcasting Inc., 17 Civ. 1860 (PAE), 2017 WL 3393845 (S.D.N.Y. 2017), at *1, *5.
  21. Id.
  22. Hirsch at *5.
  23. David Kluft, A Copyright Fable: Debunking the “Seven-Second Rule”, Trademark & Copyright Law (Aug. 30, 2017), available at https://www.trademarkandcopyrightlawblog.com/2017/08/a-copyright-fable-debunking-the-seven-second-rule/.
  24. Newton v. Diamond, 388 F.3d 1189, 193 (9th Cir. 2004).
  25. Id.