On September 26, 2023, the United States District Court for the Southern District of New York found that a brief portrayal of copyrighted photos in the background of a documentary film did not constitute sufficient grounds for an infringement claim, as the copying was de minimis and protected under the doctrine of fair use. This was Kelley v. Morning Bee, Inc., a case in which Michael Kelley, a professional photographer, brought suit (and lost) against the creators and publishers of a documentary film entitled “Billie Eilish: The World's A Little Blurry".
While this opinion initially seems promising for clarifying the de minimis standard as espoused in Ringgold v. Black Entertainment TV, Inc., upon closer look the opinion still leaves many questions unanswered as to what a court will find so “trivial […] as to fall below the quantitative threshold of substantial similarity”.
In speaking about the recognizability of the copyrighted work, the court borrows language instructing that the relevant standard is whether an “average lay observer” would be able to identify the subject matter or style of the artwork. Pointing to factors like low lighting, bad focus, and obstructed view, the court then concludes that the photos are not sufficiently observable.
However, as a definitively average observer with absolutely no professional eye for photography, I am not certain I agree with the court. In the background of the shot in question, which is taken at New Zealand's Auckland Airport where a Māori cultural group is welcoming Billie with a traditional rendition of one of her songs, the word “Airportraits” (the name of Kelley’s exhibition) is clearly visible on the wall, as is the fact that the pieces are all—surprise, surprise—portraits of airplanes. Are the photos the visual or emotional core of the shot? Definitely not. Are they fuzzy and partially obscured? Yes. But would I be able to recognize them if I saw them somewhere else? Probably. I can see that, in all the photos, the planes are arranged in generally straight lines or patterns, and that all are compositionally balanced between the aircraft and the striking blue sky beyond, which feels like continuity, if not “style” (which, as an average layman, I cannot speak to). So then what does this standard of observability really mean?
Similarly unclear is the court’s focus on the fleeting nature of the photos. The court emphasizes that the photos are only on screen for 15 seconds, taking care to note that this is only 0.18% of the film’s total screentime. They compare this to other cases in which de minimis use has not been found, where the copyrighted work took up 3.8% and 1.88% of the overall runtime of the video or film. Are we to understand then, that the threshold is something like 1% of total screentime? And what about the fact that the 3.8% was actually only 4 seconds out of a 1:44 video? Isn’t 15 seconds longer, and worse, than 4? What makes the total runtime of the allegedly infringing work relevant? Again, the court does not provide further guidance.
Instead of squarely basing their decision upon the de minimis doctrine, the court hedges by doing what many courts have done for documentaries: fall back on fair use. And make no mistake, this is a great fair use case: the work is transformative, with a purpose going beyond that of the original photos, and 15 seconds of obstructed view can hardly be understood as encroaching on the photographer’s market. Further, it is undoubtedly a hard sell to argue that forcing documentary filmmakers to agonize over each piece of potentially copyrighted work incidentally caught in their verité shots truly serves the goals of copyright law.
However, for anyone who was hoping that this case would shed light on how little is too little for the purposes of copyright infringement, the answer remains blurrier than airplane photos in the background of a Billie Eilish documentary.
 Kelley v. Morning Bee, Inc., No. 1:21-cv-8420-GHW, 2023 U.S. Dist. LEXIS 171734 (S.D.N.Y. Sept. 26, 2023).
 Ringgold v. Black Ent. TV, Inc., 126 F.3d 70, 74 (2d Cir. 1997).
 Hirsch v. Complex Media, Inc., No. 18 Civ. 5488, 2018 U.S. Dist. LEXIS 209701, at *4 (S.D.N.Y. Dec. 10, 2018).
 Ringgold, 126 F.3d at 73.
 Karen Shatzkin & Dale Cohen, Picture This: Applying the Fair Use Doctrine to Documentary Films After GoogleOracle and Warhol, 30 UCLA Ent. L. Rev. 1, 13 (2023) (explaining that documentaries are often found to be fair use).
 Pierre N. Level, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).
 Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021).
 Melissa Georges, Do I Really Need to Worry About Those Photos in the Background, Frankfurt Kurnit Klein + Selz: IP & Media Law Updates (Sep. 23, 2023), https://ipandmedialaw.fkks.com/post/102ioxl/do-i-really-need-to-worry-about-those-photos-in-the-background [https://perma.cc/32BA-QK8S] [https://web.archive.org/web/20231109204738/https://ipandmedialaw.fkks.com/post/102ioxl/do-i-really-need-to-worry-about-those-photos-in-the-background].