Wednesday, December 31, 2008

SDNY Tilts in Favor of De Minimis Defense in Pinball Copyright Case

The New York Law Journal reports on an interesting and eminently reasonable decision by Federal District Judge Denny Chin of the Southern District of New York, tossing a silly lawsuit by a pinball machine distributor whose machine appeared briefly in the background of a scene in the 2000 Mel Gibson/Helen Hunt romcom "What Women Want." The Dec. 29 decision in Gottlieb Development LLC v. Paramount Pictures Corp. is good news for studio and network production lawyers, who can now be a bit more confident that allowing brief, trivial appearances of copyrighted images or products in movies and TV shows will not result in liability.

As the opinion explains, Gottlieb's "Silver Slugger" machine appears in the background of one 3 1/2 minute scene. It's just a piece of furniture in the background, partially obscured; it's not part of the plot, and no character refers to it. Judge Chin did exactly the right thing: dismissed the case on a 12(b)(6) motion. On the copyright claim, Chin correctly concludes that, though there was technically "copying," it was de minimis and thus not actionable. (For the non-Latin speakers out there: "de minimis" is the court's polite way of saying, "I have 300 cases on my docket, and you're wasting my time with this crap? Take it up with Judge Judy.") Chin distinguished Ringgold v. Black Entertainment T.V. Inc., 126 F.3d 70 (2d Cir. 1997), which rejected a de minimis defense in the case of a poster that appeared in the background of a TV show, on the ground that in Ringgold, the poster at issue appeared for a longer time and actually related to the show's plot.

The court also dismissed Gottlieb's trademark claim, which was based on the theory that -- and I kid you not -- "its business reputation will be injured by any association of its products with the actor Mel Gibson and his purported anti-Semitic beliefs." Judge Chin generously labeled this argument "absurd." (I'd love to see the results of the trademark survey that asked "What Women Want" viewers what they thought of the pinball machine that barely appeared 37 minutes into the film. Frankly, I doubt that "Oh, that proved Gottlieb is a bunch of Jew-haters" was a common response.)

Two more points:

1) It's "de minimis" -- ("is" at the end) -- not "de minimus." This mistake is common (it shows up even in the NY Law Journal article linked to above), but it still drives me insane. So stop it.

2) This case disproves once again the copyleft fallacy that studios and record companies unthinkingly and in all cases favor an expansive scope of copyright protection. The fact is that they are extremely frequent copyright defendants, and thus have a very strong interest in making sure that there are reasonable defenses (de minimis, fair use, scenes a faire, etc.) that help them avoid liability.

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