When Billie Eilish allowed a documentary crew to follow her for the film Billie Eilish: The World’s a Little Blurry, a Māori cultural group greeted her at the airport and performed their version of one of her songs. This scene resulted in a lawsuit for copyright infringement against the producers. Nobody questioned that the producers owned their film footage of the Māori performance. Nobody raised a problem with the use of the song. However, as the camera panned among the indigenous performers, it caught ten photos on the wall behind them, viewable from seven to fourteen seconds each, but none for more than fifteen seconds in the 140-minute film.
In Michael Kelley v. Morning Bee, Inc. and Apple Inc., the court found this was NOT copyright infringement on two grounds: de minimus use and fair use. De Minimus means that the use of the photographs in the film “occurred to such a trivial extent as to fall below the quantitative threshold of substantial similarity” — “Substantial similarity” is the sine qua non of copyright infringement.
The court said that the photos would have constituted fair use, anyway. Specifically, the use was “transformative,” as the purpose of the photographs and the film were clearly different. Additionally, the appearance of the photos in the movie “cannot reasonably be expected to harm Plaintiff’s ability to license his photographs for publication and use.” The producers’ use of the photographs was tiny and incidental.
When I last gave a PowerPoint presentation, I made sure there was no clip art, clip art being the absolute death knell of a presentation. Plus, I was giving the talk to a limited group, maybe two dozen professionals, in an enclosed room. But could I use whatever illustrations I found on the Internet without risking litigation? Being sued for copyright infringement could be embarrassing for a copyright attorney. How careful should I be?
Plenty careful. I’ve heard of friends and potential clients threatened with copyright infringement litigation after using a seemingly generic image of a barbecue on a flyer for a small church event. Negotiations often begin at around $3,000. These are frequently images sitting on an obscure corner of the Internet without any attribution to their creator or mechanism allowing for an authorized license. One friend told me, “It wasn’t even meant for more than a handful of people.” It doesn’t matter. Once someone posted it on Facebook, a large firm specializing in prosecuting these micro-uses found it.
Such use constitutes reproduction and public display of someone’s copyrighted image; two uses mentioned explicitly in the U.S. Copyright Act as exclusive to its creator. In some ways, the use is tiny. But it’s not incidental.
You can find public domain image archives through any search engine. You can also license images for a modest cost. Of course, you can create original illustrations, but you cannot just pick an image off the Internet and presume free use. Even when presenting to a small group of people in an enclosed room, using an image without the proper permission constitutes copyright infringement. True — a small, private presentation would probably not be discovered. Even with a 0.1% risk that a creator would discover my one-minute use in a private presentation to a handful of people, negotiations will likely start at $3,000 if discovered.
