Ninth Circuit: De Minimis Use Is Not an Affirmative Defense for a Copyright Infringement ClaimOct 14, 2021 Published Article
According to the Ninth Circuit’s recent decision in Bell v. Wilmott Storage Services, LLC, de minimis use of allegedly infringing material is not an affirmative defense against a claim of copyright infringement. This holding is critical to be aware of, as the Court determined that the minimal viewership of an allegedly infringing work does not provide a basis for a de minimis use defense in a copyright infringement lawsuit.
In Bell, plaintiff Richard Bell published a photograph online, taken by himself, of the Indianapolis skyline. When Defendant Wilmott Storage Services purchased VisitUSA.com, Bell’s Indianapolis Skyline photograph was in its server. Bell discovered that his photograph was being used on VisitUSA.com through a reverse image search on Google, and notified Wilmott that his photograph was being displayed without permission. Wilmott continued to display the photograph at a different address, but the photograph was still viewable through a reverse image search on Google.
The District Court’s Decision and Ninth Circuit’s Subsequent Holding
The district court found that Wilmott’s use of the photograph was so minute that it constituted a de minimis copyright violation. On appeal, the Ninth Circuit reversed and remanded the district court’s decision. In a copyright infringement matter, a court must determine whether the plaintiff holds a valid copyright. If the plaintiff’s copyright is valid, the court must determine whether the defendant violated one of the plaintiff’s exclusive rights in the copyright, and subsequently whether the defendant’s purportedly infringing work is “substantially similar” to the plaintiff’s copyrighted work.
In determining whether Wilmott’s use of Bell’s photo was de minimis (which pertains to whether an infringing work is “substantially similar” to a copyrighted work), the court defined de minimis as such when the defendant’s use of the copyrighted work is so minor that a viewer would be unlikely to recognize the infringing use of the copyrighted work. Because Wilmott displayed an identical copy of Bell’s photograph, there was no grounds for a de minimis defense to Bell’s copyright infringement claim. This held true regardless of the fact that the viewership of the photograph on VisitUSA.com may have been minimal.
The de minimis inquiry relates to whether an infringing work is substantially similar to a copyrighted work, rather than the exposure that this infringing work receives.
Most circuits agree with the Ninth Circuit’s position that the de minimis doctrine serves to determine whether the infringing and copyrighted work are substantially similar enough to amount to an actionable copyright infringement claim.
To read the Bell v. Wilmott Storage Services, LLC case, click here.