Article - Subliminal Copyright Infringement

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U.S. Intellectual Property and New Media Law Update
Volume II, Issue XXVII - Monday, July 13, 1998
Subliminal Copyright Infringement
Sandoval v. New Line Cinema Corp. et al. (Second Cir. -Decided- June 24, 1998)
Some of you may have seen the film "Seven." If not, the film is about a depraved photographer who commits seven murders, each of which is designed to evoke or represent one of the traditional seven deadly sins recognized in the doctrines of the Roman Catholic Church. In one scene, approximately 1 hour and 16 minutes into the movie, two investigators searched a photographer's apartment for evidence linking him to the murders. On the back wall of the apartment there is a large light box with a number of photographic transparencies attached to it. Ten of the transparencies are reproduction of the Plaintiff's self-portraits, done without his permission. The light box is turned on for approximately 1½ minutes, which makes the Plaintiff's self-portraits briefly visible in different camera shots. The longest, uninterrupted view of the light box is for 6 seconds.
The lower court found for Defendant based on a fair use analysis. The Second Circuit found it wasted its time because before even entering into the fair use analysis, it first should have reviewed the infringement to determine whether it was de minimus. The Second Circuit found that the copying of Plaintiff's photographs falls below the quantitative threshold of substantial similarity, because the photographs, as used in the movie, are not displayed with sufficient detail for the average lay observer to identify even the subject matter of the photographs, much less the style used in creating them. In doing so, the Court cited its recent opinion in Ringgold v. Black Entertainment Television, which http://www.ipcounselors.com/19970929.htm. The decision can be viewed at: http://www.law.pace.edu/lawlib/legal/us-legal/judiciary/second-circuit/test3/97-9175.opn.html.