Photo Attorney

Jan 2, 2009

Court Finds Use of Copyrighted Work in Movie Was "De Minimis"

Recently, the US District Court in NY considered the copyright and trademark claims of the owner of rights in a pinball machine. The pinball machine was shown in the background during the movie, "What Women Want" without permission. This is important because, as discussed in my blog entries of March 20, 2008 and March 16, 2008, it is not clear whether photographs of copyrighted items are derivative works/infringing.

In the NY case, the court granted Paramount Picture's motion to dismiss, awarded Paramount court costs (but not attorney's fees), and stated in its order that:

The scene in question lasts only three-and-a-half minutes, and the [pinball machine] appears in the scene sporadically, for no more than a few seconds at a time. More importantly, the pinball machine is always in the background; it is never seen in the foreground. It never appears by itself or in a close-up. It is never mentioned and plays no role in the plot. It is almost aways partially obscured (by Gibson and pieces of furniture), and is fully visible for only a few seconds during the entire scene. The Designs (on the backglass and playfield of the pinball machine) are never fully visible and are either out of focus or obscured. Indeed, an average observer would not recognize the Designs as anything other than generic designs in a pinball machine.

This gives us a bit better sense of whether the depiction of a copyrighted work in the background of an image comprises infringement.