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Brief Use of Copyrighted Photos in Movie is De Minimis
Description Use of copyrighted photographs in background of movie set for brief period is fair use because the appearance was brief, the photos were not easily identifiable, and largely out of focus.
Topic Intellectual Property
Key Words Copyright, Infringement, Fair Use
C A S E   S U M M A R Y
Facts Ten copyrighted photographs that belonged to Sandoval, a photographer, were used without permission in a movie called Seven. The photos appeared briefly, largely in the background, for about 35 seconds. Only two of the photos were ever in focus, and they tended to be obstructed. Sandoval sued for copyright infringement. District court granted summary judgment to movie maker; Sandoval appealed.
Decision Affirmed. The infringement of the copyrighted photographs is de minimis. The use of the protected material "falls below the quantitative threshold of substantial similarity to the copyrighted work." "Sandoval's photographs as used in the movie are not displayed with sufficient detail for the average lay observer to identify even the subject matter of the photographs, much less the style used in creasing them." Because the "photographs appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable, we find the use ... to be de minimis."
Citation Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2nd Cir., 1998)

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