Introduction
The new digital age has led to the fostering of increased copyright violations regardless of the nature of work, as a result of which the defences to circumvent the onus of infringement have also broadened. Fair use/dealing principles are being creatively interpreted by the courts to determine the magnitude and the probable effect of the infringement on the copyrighted work. In this regard, the De Minimis principle in the realm of common law finds a spot in the copyright jurisprudence, even though this doctrine is not statutorily recognised, even under copyright law. This is a common law concept, which essentially means that the law does not take notice or care of trifles, which means matters devoid of need for judicial scrutiny. The de minimis principle is often invoked as a defence to counter infringement claims, arguing that minor or inconsequential uses do not constitute actionable violations. However, its specific scope and applicability require a closer look. A recent instance where renowned cine artist Nayanthara expressed her opposition and grievance over actor/ producer Dhanush’s refusal to grant a No objection certificate (NOC) for the use of a three-second clip (captured in their personal devices) from their film in her upcoming Netflix documentary. Such dispute raises questions about the applicability of the de minimis principle and its qualification as an effective defence.
BACKGROUND
The ‘de minimis’ principle originates from the Latin phrase De Minimis Non-Curat Lex, which translates to the idea that the law does not concern itself with trivial matters; it is largely used in trademark, copyright and patent cases. Judicial trends show that its applicability depends on the nature of the copyrighted material and its impact on the work. For instance, in Bell v. Wilmott Storage Services, LLC, involving a copyrighted photograph used without permission, the court emphasized analyzing the use in the context of the entire work, rejecting the defence based solely on limited online audience reach. Covert minimal usage, therefore, does not automatically qualify for the de minimus defence. In India, this doctrine has been invoked, but generally, the application of de minimis in copyright disputes is in its nascent stages of development.
FACTORS COMMONLY CONSIDERED FOR APPLYING DE MINIMIS BY THE COURTS
- Size and type of Harm: The primary factor is the extent of harm caused by the alleged infringement. For the de minimis defence to apply, the use must be insignificant, causing no meaningful financial or material damage to the copyright holder. In Swick v. City of Chicago, the Seventh Circuit deemed a police officer’s claim of denial of due process when placed on leave as de minimis. The court’s decision was primarily based on the challenge of quantifying the officer’s alleged injury.
- Adjudication Costs: Courts must assess whether pursuing the claim is economically justifiable. If the cost of litigation outweighs the overall benefit of addressing the infringement, the de minimis defence may be appropriate.
- Purpose of the Legal Obligation: The defence should not undermine the intent behind the violated legal obligation. Courts must ensure that the use of the protected work was lawful and not intended to subvert the law’s purpose.
- Impact on Third-Party Rights: The defence may be denied if resolving the claim could significantly affect the rights of third parties. The use should not result in substantial harm or losses to others beyond the immediate dispute.
- Intent of the User: The intent of the alleged infringer is crucial. Courts often deny de minimis protection to those who act in bad faith or deliberately infringe. However, unintentional or incidental uses, made without the intent of personal gain or theft, are more likely to qualify for the defence.
APPLICATION OF DE MINIMIS IN THE REALM OF COPYRIGHT LAWS
There is considerable ambiguity surrounding the application of the de minimis principle, especially in copyright jurisprudence, highlighting a need for legal clarity. Courts often misconstrue this doctrine by presenting it as a legal defence in copyright infringement cases while reducing it to a common notion of triviality.
- De minimis vs Fair use
The De minimis doctrine is mostly construed as part of the fair use defence available under the copyright laws. The rationale behind the fair use defence is also to nurture and foster creativity by legally utilizing the copyrighted work; for, e.g. personal use, including research, criticism or review, citizen journalism, scholarship, and parody, etc., are recognised in India as fair dealing provisions and other jurisdictions like the US. The observations made by the US courts can be broadly classified into three;
- De minimis embedded within the concept of fair use
In the Southern District of New York, Amsinck v. Columbia Pictures Indus court observed that there is an overlap between fair use and the doctrine of de minimis while considering the effect on the potential market for or value of the work, which is the fourth factor in the four-factor fair use test in the US. Hence, the court here considered de minimis as one of the several factors in determining fair use. Also, in Hustler Magazine, Inc. v. Moral Majority, Inc., the court used de minimis, giving it a “literal meaning”, that is, based on the meager effect of the use.
- Both are independent, standalone concepts
A Sixth Circuit decision in Mihalek v. Michigan rendered that de minimis is not limited to being a tool to analyse any of the four fair use factors; rather, de minimis has a distinct legal authority even when it is viewed in connection with fair use. The court, in this case, observed that making and keeping photocopies of advertisement plans can either be a fair use or de minimis usage.
- De Minimis has no role in fair use defence
In Ringgold v. Black Entm’t Television, Inc., the district court concluded that de minimis is an inappropriate principle to be incorporated in the fair use analysis. The third fair use factor is the substantiality and amount of portion of the work used by the defendant, and the court clarified that this factor concerns a quantitative continuum. As with all fair use factors, there is no exact cutoff point at which this factor becomes determinative. De minimis decisions are typically less controversial since the primary question is whether the harm is trivial or not.
B. Substantial Similarity and De minimis
Substantial similarity is at the core of determining copyright infringement, which means prima facie evidence that the work was copied, as not all copying is actionable. The courts often resort to the method of interpreting substantial similarity by considering de minimis as the opposite. This implies that substantial similarity exists only when the amount of literal expression copied exceeds the de minimis threshold. Simply stated, if a use will qualify as de minimis, then there shall be no substantial similarity, hence no infringement. For instance, in Compaq Computer Corp v. Ergonome Inc., the court denied summary judgment to the plaintiff, reasoning that the trier of fact could determine that copying a few phrases from a computer ergonomics handbook constituted de minimis use. However, such interpretation is problematic as this will render de minimis as a tool which Grants an exception to an activity that would otherwise be prohibited. But a closer look gives the idea that the concept of “substantial similarity” suggests that some amount of copying will not qualify. Accordingly, despite implicit suggestions by the courts to the contrary, they appear to apply de minimis in its informal sense in these cases, without any formal legal effect.
The notion of observability is an important factor in substantial similarity determinations, mostly applicable in visual works. In Sandoval v. New Line Cinema Corp, for instance, the Second Circuit ruled that the plaintiff’s photographs, appearing inconspicuously in the background of the film Seven, qualified for de minimis application. Similarly, in Gordon v. Nextel Communications, the court determined that the defendant’s fleeting and out-of-focus use of the plaintiff’s dental illustration in an infomercial warranted de minimis treatment. These cases suggest that de minimis carries an independent legal effect. Consequently, the focus shifts to the qualitative impact of copying, and how much harm it causes, rather than merely determining whether copying occurred. De minimis emphasizes the extent of harm inflicted, and without this consideration, substantial similarity exists when an entire work is copied. With it, substantial similarity integrates with the concept of de minimis.
INDIAN APPLICATION
The de minimis principle was applied for the first time in India by the Division Bench of the Delhi High Court to address two cases involving allegations of copyright infringement. An appeal in the case India TV Independent News Service Pvt. Ltd & Ors. v. Yashraj Films Private Limited. In one, the Plaintiff accused the Defendants of using the opening line of the Bollywood song Kajra Re Kajra Re in a TV advertisement. In the other, a singer performed excerpts from nine songs on a chat show, India Beats, which the Plaintiffs claimed infringed their copyright in the sound recordings. Initially, the cases were heard by a Single Judge, who dismissed the Defendants’ reliance on the de minimis principle.
The court ruled that only Section 52 of the Indian Copyright Act of 1957 permits limited use of copyrighted works without authorization, and it does not cover derivative works. Any unauthorized use, no matter how minor, was deemed an infringement, leading to an injunction against the Defendants. On appeal, the Division Bench overturned the Single Judge’s ruling, holding that the Defendant’s actions constituted a trivial infraction, thereby qualifying for the de minimis defence. The Bench considered relevant factors to determine the negligible nature of the alleged infringement.
The Bombay High Court in Shemaroo Entertainment Limited v. News Nation Network Private Limited in 2022, provided further clarity on the application of de minimis in copyright infringement cases by emphasizing the need to consider both quantitative and qualitative aspects. In this case, the court found that the use of Plaintiff’s content did not qualify as fair use or de minimis, as Defendant failed to demonstrate that the content was used for reporting current events. The judgment highlighted that the de minimis defence cannot be applied solely based on duration but must also consider the purpose of the use. This evolving landscape underscores that each case must be evaluated on its specific facts.
CONCLUSION AND RECOMMENDATIONS
The courts should explicitly apply the de minimis doctrine in copyright cases to ensure consistency and fairness. This requires, first and foremost, assessing whether the harm caused by the infringement is minimal, focusing exclusively on the impact on creative incentives. Subsequently, a balancing test should be conducted to weigh the broader social costs and benefits of dismissing claims under de minimis. Such an approach aligns with the existing legal framework, as de minimis is already an established principle, and does not necessitate substantial changes to the law. The goal is not to overhaul established case law but to simplify and clarify the reasoning behind decisions, fostering consistency without unnecessary disruption to outcomes. Applying the de minimis doctrine judiciously can enhance access to creative works while maintaining a fair balance between the rights of creators and the public interest. Incidental uses of copyrighted works, such as a painting in the background of a film scene, should be treated distinctly, recognizing their unintentional or unavoidable nature. Courts must be clear about the specific function that de minimis plays in their rulings, ensuring that it is used purposefully rather than as a colloquial notion in cases involving substantial similarity and fair use.
As modern digital practices evolve, such as memes, GIFs, video mashups, and platforms like YouTube the likelihood of legal disputes over trivial copyright violations continues to rise. In this context, classic de minimis offers both theoretical and practical advantages over fair use, its most comparable doctrinal counterpart. Properly applying de minimis could also enhance the clarity and consistency of fair use. However, the reliance on judicial discretion in determining what constitutes de minimis remains a key criticism, raising concerns about subjectivity. Whether formal statutory recognition of de minimis would enhance its utility and consistency without undermining other defences like fair use is an important consideration. Similarly, the question of whether de minimis should be expanded to address the realities of remix culture or left to the domain of fair use highlights the complexity of these issues. These remain open-ended challenges, and coherent solutions must be carefully explored to adapt copyright law to contemporary needs.
Authored by: Mr. Achyuth B Nandan
LL.M student RGSOIPL IIT KGP
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