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24 Comm. Law. 9 (2006-2007)
The De Minimis Doctrine: How Much Copying Is Too Much

handle is hein.journals/comlaw24 and id is 9 raw text is: The De Minimis Doctrine: How Much Copying Is Too Much? LEE S. BRENNER AND ALLISON S. ROHRER How much copying is enough to trigger liability for copyright infringement? A thumbnail display of a copyright owner's photograph may be enough but a full size reproduction may not be. It all depends on how the work is copied. Recently, the U.S. District Court for the Central District of California in Perfect 10 v. Google, Inc., held that a thumbnail display of a copyright owner's photograph was enough to establish probable liability and granted in part magazine publisher Perfect 10's request for a preliminary injunction to prohibit Google from displaying thumbnail images of the magazine's photographs of nude women. Google contended its copying was protected by the affirmative defense of fair use but the court disagreed.' An alternate but similar approach to the fair use defense, the de minimis doctrine, exists to identify when enough copying has occurred to establish liabil- ity for copyright infringement. Although somewhat similar in theory, this doctrine is separate from the fair use rubric. Before reaching the question of whether the use of a copyrighted work is fair and therefore free from lia- bility, courts consider the threshold issue of whether the copying was sub- stantial enough to subject the copier to liability. De minimis copying does not trigger liability. When a defendant copies a portion of a plaintiff's work but it is obscured so that the plaintiff's work is not plain- ly observable, the copying is likely within the protective confines of de minimis use and therefore not action- able. Thus, in September 2005, the Lee S. Brenner is a partner and Allison S. Rohrer is an associate at White O'Connor Curry LLP in Los Angeles. Any opinions expressed in this article are those of the authors and are not intended to reflect the views of the firm or of its clients. Southern District of New York held that the use of elements of a plaintiff's copyrighted photographs in advertise- ments for Kate Spade fashion acces- sories was de minimis in nature and granted summary judgment without reaching the issue of fair use.2 By contrast, when a portion of a copyrighted work has been copied exactly without any alteration or distor- tion, thereby leaving the copied materi- al plainly recognizable, courts are more inclined to find that the copying has exceeded the de minimis threshold. Applying this reasoning in another 2005 decision, the Southern District of New York held a television program- mer liable for copying less than 1 per- cent of a motion picture entitled Carnegie Hall because the footage copied was not transformed, altered, or obscured in any manner.' This conclusion is not unlike that reached in Perfect 10, where Google's thumbnail displays conveyed the full expression of the plaintiff's photographs. The analysis, however, is different because de minimis use goes to the threshold question of whether actionable copying has occurred, whereas the fair use analysis arises only after a finding of otherwise actionable copying. Recent decisions addressing the de minimis doctrine are surfacing in courts across the country, particularly in the Second Circuit. These decisions involve a variety of creative materials used in television, film, advertising, and musi- cal compositions. Whether it is possible to escape liability for copying depends on many factors, e.g., from the degree to which the plaintiff's material is rec- ognizable in the defendant's work to the significance of the copied material in relation to the plaintiff's work and in comparison to the defendant's work, and from the protectability of the mate- rial copied to the impact that the copy- ing will have on the plaintiff's market. Although the factors involved in the de minimis analysis are many, the cases surveyed in this article show emerging standards that promise to shape the outcome. Origins of the De Minimis Doctrine The central purpose of copyright is to promote artistic creativity for the gener- al public good by granting individual authors a limited monopoly for their artistic creations .' The scope of the lim- ited monopoly has been defined by striking a balance between the interests of authors in the control and exploita- tion of their works and society's com- peting interest in the free flow of ideas, information, and commerce.' The Copyright Act protects the inter- ests of authors by granting authors the rights to reproduce their works, prepare derivative works, distribute copies of their works, and perform and display their works publicly .' These rights are far-reaching because they are exclusive, and thus may be freely enjoyed to the exclusion of all others. Anyone who violates any of the exclusive rights of the copyright owner is an infringer of the copyright.! Nonetheless, the exclusive rights granted to copyright owners are not absolute. Copyright owners may not hold others liable for infringement for an insubstantial violation of any one of their exclusive rights. This means that even where the fact of copying is con- ceded, no legal consequences will fol- low from that fact unless the copying is substantial.' As Judge Learned Hand observed long ago: Even where there is some copying, that fact is not conclu- sive of infringement. Some copying is permitted. In addition to copying, it must be shown that this has been done to an unfair extent.9 The principle that copying must be substantial to be actionable reflects the legal maxim de minimis non curat Spring 2006 LD Communications Lawyer ED 9

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