The Ninth Circuit wrote to clarify the role that de minimis copying plays in statutory copyright. The de minimis concept is properly used to analyze whether so little of a copyrighted work has been copied that the allegedly infringing work is not substantially similar to the copyrighted work and is thus non-infringing. However, once infringement is established, that is, ownership and violation of one of the exclusive rights in copyright under 17 U.S.C. 106, de minimis use of the infringing work is not a defense to an infringement action.

The panel reversed the district court’s grant of summary judgment for defendants based on a putative de minimis use defense in a copyright case involving plaintiff’s photograph of the Indianapolis skyline. The panel applied the Perfect 10 server test, concluding that Wilmott’s server was continuously transmitting the image to those who used the specific pinpoint address or were conducting reverse image searches using the same or similar photo. Therefore, Wilmott transmitted and displayed the photo without plaintiff’s permission. Furthermore, Wilmott’s display was public by virtue of the way it operated its servers and its website. The panel also concluded that the “degree of copying” was total because the infringing work was an identical copy of the copyrighted Indianapolis photo. Accordingly, there is no place for an inquiry as to whether there was de minimis copying. On remand, the district court must consider Wilmott’s remaining defenses, and it can address the questions surrounding plaintiff’s ownership of the Indianapolis photo, in addition to the other defenses raised by Wilmott. View “Bell v. Wilmott Storage Services, LLC” on Justia Law