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I talk a lot about fair use since it is, without question, the most important limitation and exception in U.S. copyright law, representing a powerful user right. What often doesn’t get enough attention, though, is what is known as the de minimis exception where a court need not go through a full fair use analysis because the amount of the material copied is so small.

HBO recently won a case, Gayle v. Home Box Office, Inc., involving its TV series, Vinyl, a single-season series created by Mick Jagger and Martin Scorsese about a record executive in the 1970s. One episode of the show included a scene of a woman walking down a street in New York City where she passes by a dumpster tagged with graffiti that says “art we all.” The graffiti artist, Itoffee R. Gayle, claims that this depiction violated his copyright and trademark rights. According to his complaint, HBO never tried to contact him or license the graffiti. Of course, as the court agreed, HBO didn’t actually need to try to contact Gayle and no license fee was needed because not all copying is unlawful.

The District Court for the Southern District of New York points out that Gayle must prove unauthorized copying of the work and that the infringing work is substantially similar to his, which requires that the amount taken was more than de minimis. The court notes, “In the copyright arena, de minimis can ‘mean what it means in most legal contexts: a technical violation of a right so trivial that the law will not impose legal consequences,’ or it can mean ‘that 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.” In other words, de minimis means just what you think it means.

Looking at the use of the graffiti art in the episode, the court notes that Gayle’s claims “are premised on a fleeting shot of barely visible graffiti painted on what appears to be a dumpster in the background of a single scene” and that the art appears for no more than two to three seconds. Two to three seconds. Of an entire episode. Yup, sounds pretty de minimis to me. The court goes on, noting that the graffiti is not pictured by itself or close-up, plays no role in the plot, and “is hard enough to notice when the video is paused at the critical moment. It is next to impossible to notice when viewing the episode in real time.” The judge seems pretty annoyed by the copyright infringement claim, noting that “Gayle’s [claims] border on frivolous.”

While Gayle attempts to argue that HBO intentionally picked this particular piece of graffiti art to use in the background, the court concludes, “HBO’s motive in depicting the graffiti is irrelevant to the de minimis inquiry.” The copying is not actionable, because its use was so small, even if there was a thematic reason for it. For similar reasons, the court also rejects Gayle’s trademark claims.

Examples of court opinions upholding the de minimis use of copyrighted materials abound, often highlighted in uses by the art and entertainment industry. The court in Gayle v. HBO extensively cites Gottlieb Dev. LLC v. Paramount Pictures Corp, a case involving an infringement suit for the depiction of a pinball machine in a particular scene in the 2000 rom-com, What Women Want, featuring Mel Gibson. Similarly, a case brought against the 1995 crime thriller, SE7EN, featuring Brad Pitt and Morgan Freeman, resulted in a court finding that the use of copyrighted photos that appeared fleetingly and out of focus was de minimis and not liable for copyright infringement.

While rightholder communities often push for strong intellectual property rights and greater protections, it’s important for them to reflect on all the ways that limitations and exceptions allow them to produce and create, as well. Copying is not just for “pirates,” it’s a basic necessity in the creation of culture and innovation.


Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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