by Joel Hecker, Esq.

Advance Notes: When is copyright infringement of a photograph discernable? There’s an age-old adage that to infringe, the use must be recognizable. In the following case the images were recognizable, although of limited duration in one instance. In another case the images were not recognizable, which was the deciding factor.

I previously reported on an important decision where the use of artwork in a television series was determined to be copyright infringement. In that case, Ringgold v. Black Entertainment Television, Inc., the image was visible during nine sequences ranging from 1.86 to 4.16 seconds, or an aggregate total of 26.75 seconds in all.

In a more recent case, the same Appellate Court found a different fact pattern did not constitute copyright infringement because the unauthorized use was de minimus. This ruling in Sandoval v. New Line Cinema, narrows the scope of Ringgold to the extent that the images in Sandoval etc. were basically not recognizable in the context shown, and thus the issue does not even reach the threshold necessary to be determined whether it was a fair use of the images.

The plaintiff was a photographer and artist who claimed that a series of his photographs were used back in the 1995 movie "Seven" without permission. In one scene a large light box with several of these photographs was shown on a back wall in an apartment.

The light box is turned on for approximately 90 seconds, making the photos briefly visible, but with insufficient detail for the average lay observer to identify the subject matter of the photos, or the style of the photographer.

The Court therefore concluded that "because (the) photographs appear fleetingly and are obscured, severely out of focus and virtually unidentifiable," the use is de minimus and not copyright infringement.

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.