Do I Really Need To Worry About Those Photos In The Background?

• Jurisdiction: United States,Federal
• Law Firm: Frankfurt Kurnit Klein & Selz
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Broadcasting: Film, TV & Radio
• Author: Melissa Georges
• Published date: 02 October 2023

Michael Kelley v. Morning Bee, Inc. and Apple, Inc., No. 1:21-cv-8420-GHW2023 WL 6276690 (S.D.N.Y Sept. 26, 2023)

If you work in the world of documentary film, you've undoubtedly encountered a situation in which you're filming in verité, and you can't help but capture artwork or photographs appearing in the background. It must be okay, you think, because you're not intending to film these works, it's not the purpose or focal point of your shot, and you can't even see the works clearly anyway. But could the copyright owner in those works still sue you for copyright infringement? The answer, of course, is yes. But the good news, for documentary filmmakers at least, is that that kind of incidental capture of copyrighted material isn't necessarily an infringement, as a federal court in New York recently determined.

The case involved a documentary about Billie Eilish, in which the filmmaker followed the then 19 year old musical artist on the road, onstage, and at home with her family. In one scene, Eilish arrives at the Aukland Airport in New Zealand, one stop on her world tour. She is greeted by the Hatea Kapa Haka, a Maori cultural group, who performs a rendition of one of her songs, accompanied by dancing and the donning of traditional Maori attire. The performance happened to take place adjacent to three walls of a photo display featuring ten photos of an exhibit entitled "Airportraits," which appeared behind and to the sides of the performers. The scene with the performers lasted about a minute, but the photographs appear on onscreen for only about 15 seconds.

The photographer sued the film's producers for copyright infringement, and the producers moved to dismiss the complaint. The court in the Southern District of New York granted the producers' motion, finding not only that the appearance of the photos in the film was a de minimis use, but was also a fair use under U.S. copyright law. On the issue of de minimis use, the Court observed that in the 140 minute film, the photos appeared only a total of 7 to 14 seconds per photo. In addition, the photos were often obstructed, out of focus or under low lighting, or displayed at an angle. At all times, the photos appeared in the background only, and were never discussed or commented on by anyone in the film. As such, the appearance of the photos in the Film did not meet the requirement of "substantial similarity" for copyright infringement, as the use "has occurred to such a trivial extent as to fall below...