De minimis use may not be a defense to copyright infringement of a photograph

On Behalf of | Nov 11, 2021 | Copyright Law |

Scraping a copyrighted photograph from the internet and publicly displaying it (on a website, in an ad, etc.) without the copyright owner’s permission amounts to copyright infringement, plain and simple. 

Sometimes, however, individuals and businesses make the mistake of thinking they can steer clear of a copyright infringement claim if they make only a very limited use of a misappropriated photo — say, by using only a trivial or insignificant portion of the copyrighted image.

A recent decision from the United States Court of Appeals for the Ninth Circuit explains what the de minimis doctrine does not protect. 

The role of the “de minimis doctrine” in copyright law

Copyright law protects creatives against the unauthorized use of their works. The federal copyright statute entitles owners of registered, copyrighted works to sue infringers for an injunction and a monetary award. 

Courts must determine if two works (the original one and the allegedly-infringing one) are substantially similar such that infringement has occurred. A court-made rule known as the “de minimis doctrine” directs that no infringement occurs if the way the allegedly infringing work borrows from the original is so meager hat the court should not concern itself with the inconsequential use.

Bell v. Wilmott Storage Services, LLC

The de minimis doctrine, in other words, helps courts decide if infringement has occurred. But it does not excuse an infringement, on the basis that the scope of or audience for that infringement was too minimal to matter. 

That’s what an infringing party tried to argue in Bell v. Wilmott Storage Services, LLC, the recent Ninth Circuit case. The owner of a copyrighted image of the Indianapolis skyline sued a business that had used his unaltered image without permission on its website. The business argued that, even if it had infringed the owner’s copyright, the infringement should be excused as merely de minimis, in that only a small audience could have found it online.

The Ninth Circuit flatly rejected that assertion, holding that it had “never recognized a de minimis defense based on the allegedly minimal use of concededly infringing material.”  It simply did not matter that the infringing image reached only a limited public audience.

Always respect copyrights when using images you find online.  It may be no defense to an infringement claim to say that you only publicly displayed a copyrighted image without permission to a limited public viewership.