How Much ‘Minimis’ is de Minimis?
By Robert Parker
A copyright grants protection to the owner against any work which is “substantially similar” to the copyrighted work. This includes not only copying, but recreations of a copyrighted work as well. For instance, if you were to replicate the exact setting and elements of a particular photograph and recreate the picture using your own camera, you may be infringing on that photograph, even if you aren’t making an actual copy of the original. This is a powerful protection given to copyright owners, but it isn’t limitless. One of the limitations to this protection is known as the de minimis doctrine—literally, copying of such a trifling amount that the law need not be concerned. This week, we’ll cover what the de minimis doctrine is and when it may apply.
De Minimis Copying
Unlike the fair use doctrine or other affirmative defenses, in which the defendant may have infringed a copyright but has a valid defense (i.e. excuse or justification) for doing so, the de minimis doctrine states that copying someone else’s work is not infringement at all unless it has been done to an unfair extent. In other words, even if the copied work is similar to the original work, it is not substantially similar enough to be unlawful. So for instance, in one case, Bill Diodato Photography v. Kate Spade, photographer Bill Diodato had taken a picture of the feet of a woman in fashionable shoes, next to a fashionable purse, as seen under the door of a bathroom stall, and offered to sell that picture to Kate Spade for use in advertising. Kate Spade didn’t buy his picture, but later had an advertisement taken by a different photographer with all of those same elements. Nonetheless, the court found that Diodato could not claim that, by taking that photograph, he held the exclusive right to produce photographs of women’s feet underneath bathroom stalls. If Kate Spade had used his exact photograph, it would have been a clear case of infringement, but even if they did copy some of the elements of his photograph to take an entirely different photograph, it was a case of de minimis copying.
There are also examples where exact copying of a copyrighted work is nonetheless de minimis copying. If an insubstantial portion of the original work is copied, and is used in the background of the new work or is not recognizable as the original, it may be subject to de minimis. Imagine a movie scene of a man running through an art museum, past a variety of copyrighted works of art. By using those copyrighted works in the film, the filmmaker is making a copy of each work; however, so long as the camera does not actually focus on any of the works or incorporate them into the story, that filmmaker would probably not be expected to obtain rights for every piece of work which incidentally appears in the film.
There are several questions that courts have raised in trying to decide whether something is de minimis copying or something more. The basic rule is simple enough: if the original work is plainly noticeable in the new work, and/or a sizeable portion of the original work is copied (either in quantity, such as using an entire song, or in quality, by copying “the heart” of the original work), it is probably more than de minimis copying. Another red flag that the copying is more than de minimis is if the party copying the work is doing so in order to make a profit, or if the original work’s marketability is decreased as a result of the copying.
Alas, when applied in the real world, the only real consistency is inconsistency. In one case, the court found that a sample that Beastie Boys had copied wholesale from jazz flautist James Newton was de minimis copying. Yet in another case, Dimension Films, using a song which included a sampled drum track, was held liable for the copied sample even though it was not considered a significant part of the song.
Some courts have attempted to find an easily measurable line, such as quantity of use, to bring some predictability to the de minimis standard. This has proven problematic as well. In 1996, the Southern District of New York decided that a poster which appeared out of focus in the background of a BET movie for 26.75 seconds was not de minimis, and BET was found guilty of infringement. The next year, that very same court decided that a handful of photographs which appeared out of focus in the background of the movie Se7en for 35.6 seconds was considered de minimis, and the case was thrown out. Holding these two cases side by side, it may seem that the quantity of use doesn’t matter at all—on the other hand, in both cases the court saw fit to measure the exact quantity of use down to the tenth of a second, so it must not be completely irrelevant.
Suffice to say, there is no hard line for what constitutes de minimis use. So how can an artist be sure that her use of a copyrighted work is sufficiently minimal? The judge in the Beastie Boys case proposed the following rule: “Get a license or do not sample.” Of course, this does not help those who are not sampling, but may have infringed another’s work by creating something substantially similar. However, in those cases, there are many other considerations beyond the de minimis doctrine, such as evidence of copying, unprotected elements, fair use, etc.