Response to Sara Hindmarch

["Walter Matystik" <wmatysti@xxxxxxxxxxxxx>]

Re: this thread, I draw the groups attention to a 2nd Circuit Ct of Appeals
case involving a copyrighted poster that appeared for about 27 seconds
(never in sharp focus)in the background of a TV show. The Court concluded
that de minimis use had been exceeded and provided this useful overview of
the de minimis concept which I excerpt below (see Faith Ringgold v. BET 126
F.3d 70 for complete opinion). Most counsel would likely advise to be aware
of the concept but get the release anyway (especially in a for profit
commercialization setting).

De minimis - The de minimis Concept in Copyright Law

The legal maxim "de minimis non curat lex" (sometimes rendered, "the law
does not concern itself with trifles") insulates from liability those who
cause insignificant violations of the rights of others. In the context of
copyright law, the concept of de minimis has significance in three respects,
which, though related, should be considered separately.

First, de minimis in the copyright context 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. 
***
Second, de minimis 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.  
***
Third, de minimis might be considered relevant to the defense of fair use.
One of the statutory factors to be assessed in making the fair use
determination is "the amount and substantiality of the portion used in
relation to the copyrighted work as a whole," *** A defendant might contend
*** that the portion used was minimal and the use was so brief and
indistinct as to tip the third fair use factor decisively against the
plaintiff.

Walter F. Matystik, M.E.,J.D.
Asst. Provost
Faculty Research and
Computing, Policy & Planning
Adjunct Professor 
Manhattan College
Riverdale, N.Y. 10471