Sunday, July 26, 2020

Is It Incidentally Infringing... Not Worth The Court's Time?

De Minimus seems to be a fickle and mysterious mistress, legally speaking. You cannot rely on her favours. She --De Minimus-- let the dancing baby carry on over Prince's objections, but the jury (in a manner of speaking) is still out over the distinctive artwork in the background of a few permissionless porn movies.

Perhaps Dan Rather, with his delightful Big Interviews on AXS TV, bows deeply and carefully to De Minimus with his decidedly minimal and often repeated fragments of music/performance clips to illustrate a performer's oeuvre. The snatches of song are more Ringtone length than even a verse.

Link to a particularly great Big Interview.

This writer never understood the need to be super wary around De Minimus, until this week, reading an Indian Law legal blog by S. Vishaka for Eshwars.

"Is It Fair (use)? De Minimus as defense in copyright infringement

AWS link

One great point, among many great points is that use of a very short clip of a musical performance may illustrate the career and working life of a perfermer, and be counted (legally speaking) as incidental or de minimus; however, anything that might be perceived as a concert strung together with fascinating commentary would not be "incidental" and might be worth a copyright court's time.

David Oxenford, for Wilkinson Barker Knauer LLP discusses the complicated probability of inadvertent copyright infringement for podcasters who use other people's music and only buy/license half the rights they really need.


Authors beware of securing only the performance rights, but overlooking the rights to reproduce and distribute and make derivative works. Read David Oxenford's advice and avoid the pitfalls.

The same --or a similar-- problem can arise with Zoom, and when churches and restaurants move their guests into parking lots and pipe music into the open air. Playing to a parking lot is not the same as playing inside a private venue.


It applied to beleaguered gyms, too. The point about the perils of synching music with other content is underlined for Venable LLP by Calvin R. Nelson, Katherine C. Dearing, and Nicholas W. Jordan.


This is a very well written and instructive article, with examples such as of Peloton.

If a gentle reader might think they they could livestream themselves exercising to music, and it would be de minimus... well, it might depend on a lot of factors, including whether the purpose of the blog was to promote the career and writing of an author, or to make mega bucks as an influencer, so check out the musings of the above-mentioned legal bloggers.

And now for the porn. Who would have thought that there could potentially and allegedly be copyright infringement in a series of porn movies!.

But, if someone rents your distinctive and totally tasteful residence, without telling you that their purpose is for doing the business, and they make porn movies that clearly show your copyrighted works of art in the background, you might have a copyright infringement case against those naughty tenants.

Read more from the legal blogger Edward H. Rosenthal of Frankfurt Kurnit Klein and Selz PC

Or here:

Possible the bottom line for would be landladies of film makers is to copyright your distinctive things first. Mr. Rosenthal's blog reminds me of Orson Scott Card's M.I.C.E. analysis of fiction. With permissionless porn on my property (of course, it was not mine!) in mind, this author wonders whether a porn movie is a movie of E (Events); or C (Character); or I (Ideas); or M (Milieu).

How vital to the porn movie was the Location (Milieu)? If, Harry Potter-like, the premise of the porn movie was What That Portrait Of The Butler Saw, the landlady might have a very good case.  It remains to be seen.

For more on MICE, it is well discussed by Karen Woodward. It can also be googled to good effect.

A really excellent guide to Copyright Infringement in the USA has been written (in July 2019... so this author may have recommended it before today) by the legal bloggers for Jenner and Block LLP and was published, apparently exclusively for Lexology. No alternative link is available.

Copyright Infringement in the USA

All the best,

Rowena Cherry 

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