De Minimis Defense Doesn’t Necessarily Mean Minimal Use

There is a Latin maxim: de minimis non curat lex: The law does not care about the smallest thing. De minimis, in legal terms, means the thing is too trivial or minor to merit consideration. In the context of intellectual property infringement, the de minimis defense has commonly been understood to mean that a defendant carrying out a small number of activities within the scope of a claim might avoid liability for infringement.

But in a recent judgment, the US Court of Appeals for the Ninth Circuit reversed a district court’s decision in favor of a defendant’s minimal use defense. A retired lawyer took a photo of a skyline and published it on various websites. He registered the photo with the copyright office 11 years later. Then he did an online reverse image search to identify infringers, and subsequently filed over a 100 infringement suits.

One of those defendants filed to have the charges dismissed using the minimal use defense and the District Court agreed. The plaintiff appealed and the Court of Appeals reversed the decision.

They ruled that the de minimis defense wasn’t viable because the ‘degree of copying’ was total. It was an identical copy of the picture. The court reasoned that the de minimis defense isn’t a defense of infringement. It was meant to answer whether the infringing work is substantially similar to the copyrighted work. If a similar work is different enough in substance, then infringement did not occur. But once infringement is established, de minimis is not a defense.

This case clarifies that a de minimis analysis applies to whether similarities between an alleged infringing work and the copyright work are too trivial or minor to merit consideration. It does not allow defendants to escape from liability for trivial amounts of infringement.