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“De Minimis” and Infringement

Funny comic about public domain/Sonny Bono. Too bad the reality didn’t turn out that way.

Here’s a nice article about what to do if you can’t find the copyright owner to get permission.

Nice article about fair use by Mary Minow, J.D., A.M.L.S., which unfortunately doesn’t go into the judicial history of each of the 4 fair use standards. Here’s the section on De Minimis use.

In some cases, the amount of material copied is so small (or “de minimis”) that the court permits it without even conducting a fair use analysis. For example, in the motion picture Seven, several copyrighted photographs appeared in the film, prompting the copyright owner of the photographs to sue the producer of the movie. The court held that the photos “appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable.” The court excused the use of the photographs as “de minimis” and a fair use analysis was not required. ( Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998).)

As with fair use, there is no bright line test for determining a de minimis use. For example, in another case, a court determined that the use of a copyrighted poster for a total of 27 seconds in the background of the TV show, “Roc” was not de minimis. What distinguished the use of the poster from the use of the photographs in the Seven case? The court stated that the poster was clearly visible and recognizable with sufficient observable detail for the “average lay observer ” to view the artist’s imagery and colorful style. ( Ringgold v. Black Entertainment Television, Inc. 126 F.3d 70 (2d Cir. 1997).)

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