What is de minimis use of a copyrighted work?

Copyright law in the United States grants artists the exclusive right to copy, distribute and sell their art. An artist who creates a new piece of art is automatically granted copyright. The artist can choose to register the copyright with the United States Copyright Office to strengthen their rights, but registration is not required to be granted a copyright. If someone other than the copyright owner exercises one of the exclusive rights granted by the copyright owner that can be considered copyright infringement. A copyright owner can sue to get an injunction to prevent future copyright infringement and for monetary damages for copyright infringement which has already occurred.

A common defense to an accusation of copyright infringement is fair use. A fair use is any copying of copyrighted material done for a limited and transformative purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. When a court is presented with a fair use defense in a copyright infringement lawsuit court will use four factors to determine if fair use applies. Those factors are (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken from the copyrighted work, (4) the effect of the use upon the potential market for the copyrighted work.

A fair use defense is not a precise legal argument. There is no bright line rule for a fair use defense to copyright infringement. A defendant must present evidence to the court to support a fair use defense and the plaintiff is allowed to rebut that evidence. Expert testimony and depositions to support a fair use defense can take a significant amount of time and money to develop.

An alternative defense to a copyright infringement accusation is that the use of the copyrighted work is de minimis. If amount of copyrighted material copied is so small, or de minimis, the court permits it without even conducting a fair use analysis.

A case which illustrates the successful use of a de minimis use defense to copyright infringement is GAYLE v. HOME BOX OFFICE, INC., 1:17-cv-05867 (S.D.N.Y. 2017). Gayle is a graffiti artist that wrote the phrase “art we all” on a dumpster in New York City. Home Box Office is a movie and entertainment company which produced a television show called Vinyl. In one scene in Vinyl a character walks down the street in New York City where the dumpster was placed. For a few seconds Gayle’s graffiti is visible on the show Vinyl. Gayle sued Home Box Office for copyright infringement for showing Gayle’s dumpster graffiti without a license. The court sided with Home Box Office. The court found that the graffiti was not the focus of the scene, was not easily observable and only appear on screen for a few seconds. The court reasoned that the graffiti was filmed in such a manner and appeared for such a short amount of time that there is no plausible claim for copyright infringement.

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