CHAPTER 8 COPYRIGHT DE MINIMIS DEFENSE PART 1
This past summer, a multi-million dollar lawsuit was filed against Madonna’s producer for copyright infringement. The plaintiff, VMG, claims Madonna illegally sampled their music in P a g e | 445
Madonna’s international hit, “VOGUE”. On October 9, 2012, Madonna's producer responded to the allegations with a motion to dismiss. The case was initiated by the use of new technology that can be used to detect hidden sampling. Madonna’s attorney argues that the alleged copying, if indeed it occurred, was de minimis, as an ordinary observer cannot detect it, and therefore, it is not substantial enough to sustain an action for copyright infringement. The court decision on the motion to dismiss is still pending. The topic of “de minimis” copying is particularly interesting and somewhat ironic, as seen in the following threshold question:
P a g e | 446
A. WHEN
IS COPYING SOMEONE’S WORK
NOT ACTUALLY “COPYING”?
The answer to this question is applicable to Madonna’s music case, making films and documentaries and other industries too, including the creation of Wiki pages because often one must use pre-existing works comment on or explain a new topic. Indeed, we all stand of the shoulders of the giants who have gone before us.
B. 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.
P a g e | 447
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. Here are some examples of how courts and others have considered de minimis copying.
P a g e | 448
ON-LINE REFERENCES Trade Secrets Video (De Minimus 2) Trade Secrets Video (De Minimus 1) Seattle PI (Infringement Letters) Seattle PI (I Didn’t Know!)
***
http://thetradesecretsofintellectualproperty.com/
P a g e | 449
CHAPTER 8 COPYRIGHT DE MINIMIS DEFENSE PART 2 For those that do not remember or never saw the movie, “Seven� stars Brad Pitt and Morgan Freeman as police detectives trying to track down a serial killer who is committing murders and posing his victims in ways inspired by the seven deadly sins. P a g e | 450
THE MOVE: SEVEN
(With Brad Pitt and Morgan Freeman)
P a g e | 451
In one scene in the movie Pitt and Freeman figure out where the killer lives and raid his apartment. During this scene, approximately one hour and sixteen minutes into the film, photographic transparencies attached to a light box are seen.
P a g e | 452
As a result, the photographer who owned the copyright for these photographic transparencies sued the makers of the movie for copyright infringement. In the case, Sandoval v. New Line Cinema Corp, 147 F.3d 215 (2nd Cir. 1998), the parties agreed that the photographic transparencies used in “Seven” were copies of the plaintiff’s portraits. New Line Cinema argued, however, that the copying was de minimis because the photographs were never in focus, always in the background, only viewable in whole or in part for a total of 35.6 seconds, usually obscured, fleetingly displayed, and unrecognizable to the average lay viewer. P a g e | 453
The Second Circuit Court of Appeals held that New Line Cinema’s use of the plaintiff’s copyrighted work was de minimis and denied the plaintiff’s copyright infringement suit. Here are some other interesting examples involving movies, TV shows and documentaries.
P a g e | 454
ON-LINE REFERENCES Trade Secrets Video (De Minimus 1) Trade Secrets Video (De Minimus 2) Seattle PI (I Didn’t Know!) Seattle PI (Infringement Letters)
***
http://thetradesecretsofintellectualproperty.com/
P a g e | 455
CHAPTER 8 COPYRIGHT DE MINIMIS DEFENSE PART 3 In the “What Women Want” case, Gottlieb, a pinball machine developer and distributor, filed a copyright infringement suit against Paramount for showing Gottlieb’s “Silver Slugger” pinball machine in the Mel Gibson film “What Women Want.” P a g e | 456
THE MOVE: WHAT WOMEN WANT
(With Mel Gibson)
P a g e | 457
The case is: Gottlieb Development v. Paramount Pictures Corporation, 590 F.Supp.2d 625 (S.D.N.Y. 2008), The scene in question occurs at the thirtyseven minute mark of the two hour film and shows the “Silver Slugger” intermittently in the background of a bar.
Mel Gibson with the “Silver Slugger”
P a g e | 458
In the three minute long scene, the “Silver Slugger” appears for only seconds at a time and is always partially obscured by Mel Gibson, a bar stool, or a reclining chair. The pinball machine is never featured by itself, it is not a part of the plot, it does not appear anywhere else in the film, and it is not referred to by any character in the movie. As the court puts it, “it is simply part of the background.” Id. at 630. As a result, the federal court held that the average lay viewer would not recognize Gottlieb’s copyrighted designs for the pinball table as anything other than “generic designs in a pinball machine.” Id. at 632-33. The court held the copying was de minimis. P a g e | 459
Copyrighted “Silver Slugger”
P a g e | 460
ON-LINE REFERENCES Trade Secrets Video (De Minimus 1) Trade Secrets Video (De Minimus 2) Seattle PI (I Didn’t Know!) Seattle PI (Infringement Letters)
***
http://thetradesecretsofintellectualproperty.com/
P a g e | 461
CHAPTER 8 COPYRIGHT DE MINIMIS DEFENSE: PART 4 The de minis argument does not succeed all the time. One case study is: Ringgold v. P a g e | 462
Black Entertainment Television, 126 F.3d 70 (2nd Cir. 1997). A. WHEN IS COPYING NOT DE MINIMIS? In the “Church Picnic Story Quilt” case, artist Faith Ringgold created a work of art entitled “Church Picnic Story Quilt” which was used by Black Entertainment in their sitcom “ROC.” The case is: Ringgold v. Black Entertainment Television, 126 F.3d 70 (2nd Cir. 1997). In this case Ringgold sued Black Entertainment (the makers of ROC) for infringement of copyright. P a g e | 463
Between and Roc & A Quilt
The Storybook Church Quilt
P a g e | 464
The defendants claimed that the use was de minimis. The scene in question takes place in a church and Ringgold’s artwork is used as a set decoration. The artwork is visible for a total of 26.75 seconds for durations between 1.86 and 4.16 seconds, and during these durations almost the entire artwork is shown. The Second Circuit Court of Appeals looked at the scene in question and found that the artwork was clearly recognizable as a painting and was displayed on the screen with sufficient detail for an average observer to make out the characters in the artwork and Ringgold’s signature style.
P a g e | 465
Because of this, the court held that the defendants’ use of Ringgold’s artwork was not de minimis because it was substantially similar to Ringgold’s art. To conclude, de minimis is a valid defense for copyright infringement. The test for de minimis includes whether the copyrightable subject matter is out of focus, out of frame, not featured or emphasized by the film, and not readily recognizable to a lay person. If faced with a copyright infringement lawsuit, one should consider contacting an intellectual property attorney to discuss how they might succeed with a de minimis defense argument.
P a g e | 466
ON-LINE REFERENCES Trade Secrets Video (De Minimus 2) Trade Secrets Video (De Minimus 1) Seattle PI (Infringement Letters) Seattle PI (I Didn’t Know!)
***
http://thetradesecretsofintellectualproperty.com/
P a g e | 467
CHAPTER 8 COPYRIGHT DE MINIMIS DEFENSE: PART 5 In the recent documentary film, Rise N Shine – A Hero’s Journey the issue of de minimis use came up.
P a g e | 468
A. CLEARING DE MINIMIS RIGHTS: RISE N SHINE – A HERO’S JOURNEY Rather than face the issues presented in the Seven or What Women Want (discussed above) the film makers choose to have the background art “cleared”. This has unfortunately become industry practice – even for documentaries. Rise N Shine – A Hero’s Journey depicts the trials and tribulations of children with HIV/AIDS. It showed at the Seattle International Film Festival and have some critical acclaim.
P a g e | 469
The full ten minute film can be seen at:
Rise N Shine – A Hero’s Journey www.RiseNShineMovie.com/presskit
During an interview with the director of the Rise N Shine non-profit a Seattle artist’s picture appears in the background. P a g e | 470
The photograph is never in focus, it is never emphasized by the camera framing and lighting, the left side of the photograph is cut off and the photograph is only on screen for thirty to forty seconds our of a total running time of one 10 minutes. In this case, the film makers cleared the issue with the artist through the non-profit organization. The question is, did the film makers need to do that or what the copying “de minimis?�
P a g e | 471
Screen capture from Rise N Shine – A Hero’s Journey
When someone claims copyright infringement and files a lawsuit they need to initially show two things: 1) that they own the copyright in question and 2) that the defendant copied plaintiff's material without permission.
P a g e | 472
Additionally, to prove that defendant’s copy is a copy of plaintiff’s work, the plaintiff has to show that there is “substantial similarity” between the two works. In the current situation, we all agree that artist owns the copyright to painting. Thus we are left with two feasible defenses: 1) the copying was de minimis and that our copy isn’t substantially similar to the artist's photograph, or 2) the copying was fair use. In the Rise N Shine example, the art is only on display for thirty to forty seconds out of a total ten minute running time. During these thirty seconds the photograph is out of focus and the camera angle cuts off the top half of the photograph. P a g e | 473
Further, the photograph is never the focus of the interview scene; it is a background detail in the office of the subject being interviewed. The court would probably decide that while a copy of the painting was created in the film, it is not substantially similar and or de minimis, and is thus not a copy. Because de minimis is a moving target, the film makers took no chances and cleared the use of the art through the non-profit. The artist was happy to have the work shown in the background. Unfortunately, in most cases copying is simply copying.
P a g e | 474
ON-LINE REFERENCES Trade Secrets Video (De Minimus 2) Trade Secrets Video (De Minimus 1) Seattle PI (Infringement Letters) Seattle PI (I Didn’t Know!)
***
http://thetradesecretsofintellectualproperty.com/
P a g e | 475
CHAPTER 8 COPYRIGHT DE MINIMIS DEFENSE: PART 6 The “clearing approach” to de minimis, while practice is also criticized by some scholars, notably the late Keith Aoki.
P a g e | 476
A. THE “CLEARING APPROACH” TO DE MINIMIS CRITICIZED Professor Aoki suggest in his seminal work, “Bound by Law: Day in the File of a Film Maker” The comic law coimic book is at:
http://web.law.duke.edu/cspd/com ics/digital.phpthat http://blog.seattlepi.com/timothy mccormack/2011/09/22/bookreview-bound-by-law-a-tribute-tokeith-aoki/
P a g e | 477
Bound By Law Comic Book
P a g e | 478
According to Professor Aoki, documentarians should not have to clear background art or copyrighted works appearing in the background of “reality.” The sounds of a New York street might include copyrighted music or the back stage of a play might show the stage hands watching the “Simpsons.” Aoki postulates that protecting these background copyrights threatens the creative production of new copyrighted work – namely documentaries. While Professor Aoki might very well be correct, the current United States Copyright law appears to favor rights holders.
P a g e | 479
The de minimis legal target is “small” and, in any case, hard to hit. Without a further clarification from Congress or case law to make the issue more clear – the trend in the film industry is clear the rights – regardless. The music industry, as noted about, might be breaking new ground on the topic and could help or hurt the copyright defense of de minimis copying. Interestingly, the Wiki Policy on copyrights adopts an approach that is similar to what the movie industry is doing. The Wiki policy states:
P a g e | 480
http://en.wikipedia.org/wiki/Wikipedia:Your_first _article:
“Copying things. Do not violate copyrights.�
Never copy and paste text into a Wikipedia article unless it is a relatively short quotation, placed in quotation marks, and cited using an inline citation. Even material that you are sure is in the public domain must be attributed to the source, or the result, while not a copyright violation, is plagiarism. Also note that most web pages are not in the public domain and most song lyrics are not either. In fact, most things P a g e | 481
published after 1923, and almost everything written since January 1, 1978 are automatically under copyright even if they have no copyright notice or Š symbol. If you think what you are contributing is in the public domain, say where you got it, either in the article or on the discussion page, and on the discussion page give the reason why you think it is in the public domain (e.g. "It was published in 1895).
P a g e | 482
ON-LINE REFERENCES Trade Secrets Video (De Minimus 1) Trade Secrets Video (De Minimus 2) Seattle PI (I Didn’t Know!) Seattle PI (Infringement Letters)
***
http://thetradesecretsofintellectualproperty.com/
P a g e | 483
CHAPTER 8 COPYRIGHT DE MINIMIS DEFENSE: PART 7 It seems Madonna’s case might also provide an interesting new look into the intersection of digital sampling and copyright law as well. P a g e | 484
A. CONCLUSION At first blush this topic presents a seemingly strange set of balancing tests. The purpose of copyright law, however, is to protect artists, writers, photographers and to incentivize the creation of new works. Copyright seems to strike that balance here because it balances creating new works with the right to protect existing works. This balancing is also written into what we call the “fair use” doctrine – a part of the copyright law that says is actually fair to copy someone else’s work in some cases. Fair use is squarely born from the free speech rights articulated in the First Amendment of the United States Constitution. P a g e | 485
ON-LINE REFERENCES Trade Secrets Video (De Minimus 1) Trade Secrets Video (De Minimus 2) Seattle PI (I Didn’t Know!) Seattle PI (Infringement Letters)
***
http://thetradesecretsofintellectualproperty.com/
P a g e | 486
CHAPTER 8 COPYRIGHT DE MINIMIS DEFENSE: PART 8 Here are some of the myths of the de minimis copyright defense de-bunked. P a g e | 487
Myth Busters No. 27
I can copy just a small bit and be okay. False.
Copying even a “little� bit (like a
painting in the background of a video shot) is enough to make you responsible for a copyright infringement.
P a g e | 488
Myth Busters No. 28
I used so little the damages will be small. False. Copyright law makes no distinction for damages based on only a “small amount” of copying. If you use someone else’s work, be prepared to pay for it.
P a g e | 489
ON-LINE REFERENCES Trade Secrets Video (De Minimus 1) Trade Secrets Video (De Minimus 2) Seattle PI (I Didn’t Know!) Seattle PI (Infringement Letters)
***
http://thetradesecretsofintellectualproperty.com/
P a g e | 490
CHAPTER 8 COPYRIGHT DE MINIMIS DEFENSE: PART 9 Here are the “essentials” of the de minimus copyright defense.
P a g e | 491
Just the Essentials
De Minimis: “Bite Sized” In order to figure out whether or not the copying was de minimis, the court looks to how the art was copied in the film.
There is no clearly
defined rule or standard (called a “bright-line rule” in legal circles) for what is de minimis, instead a court looks at multiple factors - caseby-case.
P a g e | 492
Just the Essentials
De Minimis: “Bite Sized� These factors include: 1.
How long is the art on display in the film, and how long is this time in relation to the rest of the film?
2.
Additionally, is this time all at once or in pieces?
P a g e | 493
Just the Essentials
De Minimis: “Bite Sized� 3.
Is the art prominently displayed and/or emphasized in the film through lighting, focus and camera angles?
4.
Is the whole art visible, or is it only a part of the photograph, and how often is this the case?
5.
Is the art recognizable to the average lay viewer during the time it is on screen?
P a g e | 494
ON-LINE REFERENCES Trade Secrets Video (De Minimus 1) Trade Secrets Video (De Minimus 2) Seattle PI (I Didn’t Know!) Seattle PI (Infringement Letters)
***
http://thetradesecretsofintellectualproperty.com/
P a g e | 495