Michael Kelley v. Morning Bee, Inc. and Apple, Inc., No. 1:21-cv-8420-GHW2023 WL 6276690 (S.D.N.Y Sept. 26, 2023)
If you work in the world of documentary film, you’ve undoubtedly encountered a situation in which you’re filming in verité, and you can’t help but capture artwork or photographs appearing in the background. It must be okay, you think, because you’re not intending to film these works, it’s not the purpose or focal point of your shot, and you can’t even see the works clearly anyway. But could the copyright owner in those works still sue you for copyright infringement? The answer, of course, is yes. But the good news, for documentary filmmakers at least, is that that kind of incidental capture of copyrighted material isn’t necessarily an infringement, as a federal court in New York recently determined.
The case involved a documentary about Billie Eilish, in which the filmmaker followed the then 19 year old musical artist on the road, onstage, and at home with her family. In one scene, Eilish arrives at the Aukland Airport in New Zealand, one stop on her world tour. She is greeted by the Hatea Kapa Haka, a Maori cultural group, who performs a rendition of one of her songs, accompanied by dancing and the donning of traditional Maori attire. The performance happened to take place adjacent to three walls of a photo display featuring ten photos of an exhibit entitled “Airportraits,” which appeared behind and to the sides of the performers. The scene with the performers lasted about a minute, but the photographs appear on onscreen for only about 15 seconds.
The photographer sued the film’s producers for copyright infringement, and the producers moved to dismiss the complaint. The court in the Southern District of New York granted the producers’ motion, finding not only that the appearance of the photos in the film was a de minimis use, but was also a fair use under U.S. copyright law. On the issue of de minimis use, the Court observed that in the 140 minute film, the photos appeared only a total of 7 to 14 seconds per photo. In addition, the photos were often obstructed, out of focus or under low lighting, or displayed at an angle. At all times, the photos appeared in the background only, and were never discussed or commented on by anyone in the film. As such, the appearance of the photos in the Film did not meet the requirement of “substantial similarity” for copyright infringement, as the use “has occurred to such a trivial extent as to fall below the quantitative threshold of substantial similarity.” (quoting Ringgold v. Black Ent. Television, Inc., 126 F.3d 70, 74-75 (2d. Cir. 1997).
The Court went on to state that even if the use of the photographs in the film were not de minimis, the use would be permissible under the doctrine of fair use. The Court analyzed the appearance of the photographs pursuant to the four statutory fair use factors. The first factor, the purpose and character of the use of the work, focuses on whether the alleged infringing use has a further purpose or different character than the original use, called a “transformative” use. The Court observed that the photographs and the Film served very different purposes: the photographs commented upon the spirit of modern aviation and appeared only incidentally in the film, which had the larger purpose of documenting Eilish’s life and career. The Court concluded that the momentary depiction of the photographs in the film comprised “a transformative purpose of enhancing the biographical [story]…, a purpose separate and distinct from the original artistic and promotional purpose for which the images were created.” (quoting Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006).
On the second factor, the nature of the copyrighted work, the Court found it neutral with respect to both parties. Because the photographs were both creative and published, the Court determined this factor did not weigh strongly in either party’s favor and in any case, noted that the second factor “does not carry much weight in the fair use analysis.” On the third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, the Court found it weighed heavily in favor of a finding of fair use as the portion used was minimal, brief and indistinct, and certainly “reasonable in relation to the purpose of the copying” (quoting NXIVM Corp. v. Ross Inst., 364 F.3d 471, 480 (2d Cir. 2004). Finally, on the fourth factor, the effect of the use on the potential market for the copyrighted work, the Court determined that the film’s “fleeting use of the photographs in the background of a scene depicting a cultural performance cannot reasonably be expected to harm Plaintiff’s ability to license his photographs for publication and use.” In finding fair use in favor of the producers, the Court concluded:
To hold otherwise would require documentarians to either blur, or obtain permission and pay licensing fees for every such fleeting, incidental, and momentary capture of any work of art in the background of a completely unrelated scene – where the work has not been consciously chosen for any decorative or thematic purpose, is simply present during the filming of unpredictable, unfolding, real-life events, and does not in any way supplant the market for the original work. Such a holding would not serve the copyright law’s goal of promoting ‘the Progress of science and use Arts.’ (quoting U.S. Const., art. 1, sec. 8, cl.8).
This decision is a win for documentary filmmakers, who should be able to include incidental material as filmed, because to do otherwise could result in an alteration and thus falsification of reality, a practice which would be inconsistent with the documentary filmmaking process and with the values of criticism and journalism that inform reality-based filmmaking.