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Graffiti copyright claim fails because use in TV show de minimis

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Broadly, creative works of art in many instances can be properly protected by copyright. We recently talked about copyright issues surrounding tattoos. Today we discuss an interesting case about copyright in graffiti in the context of its appearance in the background of a scene of a TV show. 

On May 1, a federal judge in New York dismissed a copyright claim (and other claims) in which a graffiti artist sued HBO for copyright infringement. During filming on a New York City street, his graffiti with the phrase "art we all" on a dumpster was captured in the backdrop during about three seconds of one episode in the series "Vinyl," a show known for the creative involvement of Mick Jagger.

Gayle v. Home Box Office, Inc. 

To show copyright infringement, the second work must be "substantially similar" to the copyrighted work. To establish substantial similarity, the extent of the use of the copied work must be greater than "de minimis." As the court wrote, a use is de minimis when it is only a "technical violation of a right so trivial that the law will not impose legal consequences." 

In a TV show or film, the question focuses on "observability," including consideration of "focus, lighting, camera angles, and prominence" from the point of view of an "average lay observer." 

Basically, a very brief view of copied material that adds no meaning or value to the filmed work does not establish substantial similarity. 

De minimis use 

Here, the judge said that the graffiti artist's claims "border on frivolous," and that infringement is implausible because the use was de minimis. She based this on these factors: 

  • The graffiti in the episode is "barely visible."
  • The graffiti appears "no more than two to three seconds."
  • It is in no way related to the plot of the show.
  • The film never uses a close shot of the graffiti or a scene when it is pictured alone.
  • An actress in the foreground is brightly lit in a noticeable red dress, while the graffiti is not even fully visible, being shot at an "oblique angle and in low, uneven light."
  • It is extremely difficult to notice while the show is playing at regular speed, unless the video is paused. 

For these reasons, the judge said that no person viewing the episode would think that HBO "sponsored" the graffiti or that the graffiti artist was a sponsor of the episode in question. 

According to Westlaw, an appeal was filed in the case on May 21.

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