The out-of-doors world abounds with copyrighted works, and visual authorship is everywhere on display: giant visuals on buses, designs on T-shirts, public sculpture, caps with artsy graphics, advertising posters — and graffiti. In a world abristle with potential copyright claims, what is a filmmaker to do when she ventures into the streets? Must she seek rights clearance for every work upon which her camera alights — or eschew everything but her own subjects?

No, holds a recent decision in Gayle v. Home Box Office, 2018 WL 2059657 (S.D.N.Y. May 1, 2018), appeal docketed, No. 18-1536 (2d Cir. May 21, 2018). According to that ruling, when a scarcely legible graffiti (or other copyrighted content) appears fleetingly in the background and is not the focus of a scene, either visually or substantively, the use may be deemed de minimis and hence non-infringing.

Gayle comes 21 years after a decision by the U.S. Court of Appeals for the Second Circuit that went the other way but set the stage for de minimis holdings on the incidental use of visual works in movies or television. In Ringgold v. Black Entertainment Television, a poster of artist Faith Ringgold’s “Church Picnic” was displayed as set decoration in nine segments aggregating 27 seconds. The Second Circuit rejected the studio’s de minimisand fair use defenses. In copyright law, Ringgold explains, de minimis usually means “copying [that] has occurred to such a trivial extent as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying.”

The quantitative element plays a role in fair use analysis: §107 of the Copyright Act requires consideration of “the amount and substantiality” of the copying. But, Ringgoldcounsels, the de minimis “concept is an inappropriate one to be enlisted in fair use analysis . . . If the allegedly infringing work makes such a quantitatively insubstantial use of the copyrighted work as to fall below the threshold required for actionable copying, it makes more sense to reject the claim on that basis and find no infringement.”

For reasons we needn’t go into here, the Ringgold court faulted the district court’s fair use analysis and remanded. But because Ringgold’s progeny, including Gayle, concentrate on the de minimis defense, we focus on that issue.

The Ringgold court held the public display of the “Church Picnic” poster was not de minimis in light of the relative clarity with which the poster could be seen, with “sufficient observable detail for the ‘average lay observer’ to discern African-Americans in Ringgold's colorful, virtually two-dimensional style.”

“Observability” is thus the key.

In Sandoval v. New Line Cinema, the defendant used 10 of Sandoval’s photographs. Though visible for up to six seconds, and at least partly for a total of 36 seconds, “Sandoval's photographs [were] 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,” the court ruled. The photos were shown in poor lighting, at great distance, were out of focus and were “virtually unidentifiable.” The copying was held de minimis.

Likewise in Gottlieb Development v. Paramount Pictures. In that case, the copyrighted designs on the plaintiff’s “Silver Slugger” pinball machine were allegedly infringed because the machine appeared in a three-and-a-half-minute scene in a film. Notwithstanding that the pinball machine was selected for its thematic relevance, the display was de minimisbecause the “Silver Slugger” appeared only briefly, in the background, and the copyrighted designs were out of focus, obscured and never fully visible.

Gayle confirms that minor, incidental use may be de minimis. In an episode of HBO’s series Vinyl, a woman is shown walking down a New York City street and passing a dumpster. Graffiti on the dumpster bearing the text “Art We All” briefly appears. The creator alleged this constituted copyright infringement, but the court granted HBO’s motion to dismiss.

Observability is “paramount” to the de minimis issue, Gayle holds, and “turns on ‘the length of time the copyrighted work is observable as well as factors such as focus, lighting, camera angles, and prominence.’”

Gayle’s claim was “premised on a fleeting shot of barely visible graffiti” that “appears on screen for no more than two to three seconds,” is never pictured by itself or in a close-up and plays no role in the plot. This graffiti “is ‘never fully visible,’ let alone legible.”

Gayle sought to bolster his claim by asserting the use was deliberate and consequential. The court dismissed these considerations, reiterating Gottlieb‘s holding that motive is irrelevant: “[W]here the use is de minimis’… ‘the copying will not be actionable, even where the work was chosen to be in the background for some thematic relevance.”

Lesson for filmmakers: We cannot quite say that chances of a challenge are de minimis . But when third-party visual works can be seen in your videos, Gayle and its predecessors suggest you will have substantial defenses so long as the earlier works appear only incidentally and briefly, remain in the background, are not significant to the plot and are presented in such a manner that their expressive character is not readily discernable.