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USE OF IMAGES IN MOVIES - INFRINGEMENT OR NOT?
 I previously reported on an important decision where the use of artwork in a television series was determined to be copyright infringement. [See December 1997 issue of Photo Stock Notes]. In that case, Ringgold v. Black Entertainment Television, Inc., the image was visible during nine sequences ranging from 1.86 to 4.16 seconds, or an aggregate total of 26.75 seconds in all.
In a recent case, the same Appellate Court found a different fact pattern did not constitute copyright infringement because the unauthorized usc was de minimus. This ruling in Sandoval v. New Line Cinema, narrows the scope of Ringgold to the extent
that these image were basically not recognizable in the context shown, and thus does not even reach the threshold necessary to determined whether it was a fair use of the images.
The plaintiff was as photographer and artist who claimed that a series of his photographs were used in the 1995 movie "Seven" without permission. In one scene a large light box with several of these photographs was shown on a back wall in an apartment.
The light box is turned on for approximately 90 seconds, making the photos briefly visible, but with insufficient detail for the average lay observer to identify the subject matter of the photos, or the style of the photographer.
The Court therefore concluded that "because (the) photographs appear fleetingly and are obscured, severely out of focus and virtually unidentifiable," the use is de minimus and not copyright infringement.
The difference between Ringgold and Sandoval is profound. Together they reinforce the age old adage that to infringe, the use must be a recognizable taking. In Ringgold it was obvious, although of limited duration. In Sandoval it was not, which was decisive.
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