The length of the appearance and how it appeared on the scene is relevant.
Itoffee R. Gayle v. Home Box Office, Inc., 126 U.S.P.Q.2d 1760 (S.D.N.Y. 2018).
Gayle’s graffiti stating “art we all” appeared in the background of one scene in an episode of Vinyl, the HBO television series. Gayle claimed that HBO depicted his graffiti without permission, compensation or attribution, and therefore infringed his copyright. The court dismissed Gayle’s claim based on the de minimis doctrine. Simply put, HBO’s use of the graffiti was qualitatively and quantitatively to minimal to constitute infringement.
The use was considered de minimis because of the following facts:
- The graffiti appears on screen for no more than 2 or 3 seconds
- The graffiti is never pictured by itself or in a close-up
- The graffiti doesn’t play a role in the plot
- The graffiti is, at best, shown in the background; in fact, hard enough to notice when the video is paused at the critical moment.
- the Graffiti is filmed in such a manner and appears so fleetingly
The court relies on Dev. LLC v. Paramount Pictures Corp., 590 F. Supp. 2d 625 (S.D.N.Y. 2008). In this case, plaintiff claimed that his copyright in a pinball machine was infringed when the pinball machine appeared in the movie What Women Want starring Mel Gibson. The court dismissed plaintiff’s claim based on the de minimis doctrine:
“The scene in question lasts only three-and-a-half minutes, and the machine appears in the scene sporadically, for no more than a few seconds at a time. More importantly, the pinball machine is always in the background; it is never seen in the foreground. It never appears by itself or in a close-up. It is never mentioned and plays no role in the plot. It is almost always partially obscured (by Gibson and pieces of furniture), and is fully visible for only a few seconds during the entire scene. The Designs are never fully visible and are either out of focus or obscured. Indeed, an average observer would not recognize the Designs as anything other than generic designs in a pinball machine.”
Gayle pointed out that HBO’s use of his graffiti was deliberate and consequential, as HBO used the graffiti to recreated the 1970s New York City theme, but the court held that where the use is de minimis, there is no infringement even where the work was copied to be in the background for some thematic relevance.
Click here for The Quilt Case where the de minimis doctrine did not apply.
Law in Style. 