Corporation, USDC S.D. New York, December 29, 2008

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The district court held that Paramount’s use of plaintiff’s pinball machine in a three-and-a-half minute scene in the movie What Women Want was de minimis and dismissed plaintiff’s claim of copyright infringement.

To establish that infringement is de minimis, the alleged infringer must demonstrate that the copying of the protected material is so trivial “as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying.” In cases involving visual works, courts consider the extent to which the copyrighted work is copied in the allegedly infringing work, including the length of time the copyrighted work is observable as well as factors such as focus, lighting, camera angles, and prominence.

In this case, the plaintiff’s pinball machine appeared in a scene depicting a brainstorming meeting in the office of an advertising agency. The pinball machine appears intermittently in the background, for seconds at a time, and always partially obscured by the actor Mel Gibson or pieces of furniture. As the court noted, the pinball machine “does not appear in any shot by itself, nor is it part of the plot. It does not appear anywhere else in the film, nor does any character ever refer to it. It is simply part of the background in one limited scene.” The court dismissed plaintiff’s claim because, although Paramount used plaintiff’s pinball machine without authorization, its use was not actionable as copyright infringement because the use was de minimis.

The court distinguished this case from Ringgold v. Black Entm't T.V. Inc., 126 F.3d 70 (2d Cir.1997). Ringgold involved the unauthorized use of a copyrighted poster in an episode of an HBO television series. The poster was shown, in whole or in part, nine times during a five-minute scene at the end of the episode and was plainly observable. In addition, there was a connection between the theme of the poster and the television episode: the poster depicted a Sunday school picnic held by the Freedom Baptist Church in Atlanta, Georgia, in 1909, and was intended to convey aspects of the African-American experience in the early 1900s and the television show (ROC) was a sitcom about a middle-class African-American family living in Baltimore, and the scene in question was of a gathering in a church hall with a minister. In the Ringgold decision, the Second Circuit noted that HBO's production staff “evidently thought that the poster was well suited as a set decoration for the African-American church scene of a ROC episode.” In this case, the court held that there was no connection between the Silver Slugger pinball machine and the plot of the movie and the pinball machine was only seen for a short period of time and was always in the background.

The court also dismissed plaintiff’s claim of trademark infringement because the plaintiff’s argument that Paramount’s use of the pinball machine was likely to cause consumer confusion was not plausible.