A client-museum asked us whether shooting a documentary with a glimpse of a copyrighted photograph in the background amounts to copyright infringement? Well technically yes, as would singing a snippet of a song authored by someone else or cutting a cartoon strip and hanging it on your fridge. But is it enough to prosecute you in a court of law? The answer is NO, because they all fall within the De Minimus Exception (“DME”).
The DME says that the law does not concern itself with trifles. It is a common law principle which has been recognised as a valid defense under the provisions of the Indian Penal Code and is now being increasingly used as a defence to claims of copyright infringement. A recent application of this concept was seen in the US case of Gayle v Home Box Office (2018).
In this case, Gayle’s graffiti was captured in the footage of a TV Show called Vinyl, when a character from the show was shown walking on the streets. The Court held that since the use of Gayle’s work was so limited, it was a de minimus claim that was almost frivolous in nature. However, this was largely because the graffiti was barely visible while viewing the clip in real-time and hardly recognisable when the video was paused.
The DME was also applied in the Indian case of India TV v Yash Raj Films (2012) (“India TV Case”), where singing snippets of a popular song was not considered to be a violation of copyright. In this case, the Delhi High Court laid down five factors that should be considered in order to determine whether an infringing use qualifies for the DME.
Firstly, the courts will consider the size of the use and the type of harm such use can cause. Lifting a sentence off a two-hundred-page novel, may seem to be de minimus, however, such a use may cause significant harm to an author if that sentence is the sentence that gives away the essence of the book or alternatively, discloses the suspense of a mystery novel.
Secondly, the courts will consider whether a copyright claim is worth adjudicating with respect to such a de minimus use. This will be determined by the amount of harm such use can cause and the cost of going to court itself. To illustrate, it may not be worth going to court if an advertisement used one line of a popular song because the loss caused to the copyright owner of the song may not be significant. To provide a detailed example, let us consider the purpose of the behind a song production. The purpose of producing a song is to entertain people and thereby profit from cassette purchases, downloads, and advertisement’s on a production house’s YouTube Channel. However, using one line from a song in an advertisement will not serve this purpose. Thus, it will not hinder the production house’s ability to profit out of the song because people cannot entertain themselves with a reproduction of one line from a song in comparison to reproduction of the whole song or a substantial part of it. Therefore, the harm caused to the production house would be seemingly insignificant, in comparison to the cost of going to court.
Thirdly, the courts will look at the purpose behind the infringing use. In doing this, the courts will see whether the user used the infringing material for a rival purpose or whether it was to use such material for some other purpose altogether. For example, in the India TV Case, the purpose of signing the snippets was to shed light on a prominent singer’s musical career and not derive profit out of broadcasting a copyrighted song. Another example of a rival purpose would include using a large portion of a copyrighted song in a YouTube video, that can be played on repeat by the viewers of that video to entertain themselves.
Fourthly, the courts will look at the effect on the legal rights of third parties. Although the court did not elaborate on this point, it may refer to the effect of an infringing use on the potential market value of a copyrighted work. For example, the courts would consider whether broadcasting snippets of a copyrighted song would have an adverse effect on the market value of such a song.
Lastly, the courts will look at the intent behind the infringing use. In doing so, the courts will ask whether the intention of the infringing user was to ride over the copyright of the author? For example, the intention behind pirated videos is to ride over the copyright of another, but the intention behind broadcasting snippets of a song may be to make a talk show more interesting. If the intention of the infringing user is to ride on another’s copyright (by making monetary gains through the infringing use or otherwise), then the infringing use will not qualify for the DME.
You can benefit from the DME in several ways. For example, as content creator, you can create videos by taking small clips from other people’s videos or aggregate news headlines for your news app, etc. As an advertising company, you can use small snippets or lines from a song in an advertisement campaign. As a vlogger, you may use the DME to your benefit, like when shooting a travel vlog that features a visit to an art gallery or posting a daily vlog that may have your favourite song playing in the car. You may not be liable for singing in the shower for a morning beauty routine vlog. Similarly, singing a song in front of a limited audience for a talent show audition could also qualify for the DME. So can, clicking a photograph with a famous painting in the background. You may also not be liable for clicking a photograph within which there is a small photograph clicked by another person. Copying a drawing of your favourite cartoon onto a birthday card for your best friend may also qualify for the DME.
However, in order to use the DME to your benefit, keep in mind that the size and nature of the harm caused to a copyright owner is minimal and your intention and purpose behind the infringing use is benign.
This post has been authored by Ila Tyagi, Associate at Ikigai Law, with inputs from Tanya
Sadana, Senior Associate and Anirudh Rastogi, Managing Partner at Ikigai Law.