What If I Only Use A Little? De Minimis in Copyright Law by Kelley Way
Let’s welcome back monthly columnist Kelley Way as she shares with us “What If I Only Use A Little? De Minimis in Copyright Law.” Enjoy!
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Whenever I talk about copyright law, I inevitably get asked, “Is it okay if I only use x % of a [song/movie/book]?”
Sometimes I’ll get the variation, “How much is too much?”
And even, “Can I use this song, video, picture, etc., if I only take a little bit?”
I always point out that no “bright-line” rule clearly states how much is okay and what will tip the scale over the line into infringement.
This issue is decided on a case-by-case basis, so you won’t know for sure if your use is okay until after the lawsuit is over.
However, there are some guidelines used by the courts to decide when the use is “de minimis” (lawyer-speak for “too small to bother with”), and I’ll share those here.
How Much Can I Use with De Minimis? The Quantity Question
The first question the court will ask is, “How much was copied?”
If a poem is 10 pages long and you use 10 words, the court will probably decide that the amount copied was negligible.
This quantity question is also the idea behind the “rules” that it’s okay to use four lines or less of music lyrics or no more than ten percent of a work.
These rules aren’t actual rules. Still, they give a guideline of what’s generally considered acceptable.
When the case revolves around screenshots of videos or samplings of music, this quantity question factor is essential.
If the new work is an audiovisual work (think movies or music), the courts will next ask, “How observable is the copied work in the new work?”
In other words, they want to know the length of time the copied work appears on screen or can be heard in a musical work.
If a piece of art appears for 2 seconds in a full-length movie, the courts will likely find no infringement.
If the art is visible for an entire 5-minute scene, then there may be a problem.
How You’re Using It Matter
The last question is, “How prominent/visible is the copied work in the new work?”
If the case involves artwork appearing in a movie, the court will look at whether it’s in the foreground or the background, whether the focus is on the artwork or something/someone else in the scene, how clearly the artwork can be seen, etc.
The idea here is to see how much attention is being drawn to the copied work.
If the copied work is “background noise,” then it’s less likely the court will feel the need to enforce the copyright.
De Minimis Is Not a Guarantee
So what does this mean for your use?
Again, I can’t give any guarantees, but clearly, the less you use, the better.
The smaller the piece you use and the less prominent it is, the more likely it will be considered de minimis.
If you would like to get some advice on your use specifically, you are welcome to email me at kaway@kawaylaw.com.
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ABOUT THE AUTHOR
Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar, and an aspiring writer of young adult fantasy novels. More information at kawaylaw.com.
