If you are a television news producer or documentary filmmaker, you have almost certainly faced this issue: You are putting together a story about a past event, and you want to make the point that this past event was once the subject of media coverage. The easiest way to do that is to show some of that media coverage, for example, by including a short clip from the evening news or by panning across a newspaper article headline. Are you allowed to do that? Are you infringing the copyright in that news clip or in that article?
When I was a video editor (and not yet a lawyer), I was regularly told by other non-lawyers that such use was permissible as long as it didn’t violate the “seven-second rule.” This apocryphal safe harbor provided that, if you show a copyrighted work for fewer than seven seconds, then you were protected either by the fair use doctrine or by the equally mythical doctrine of “nobody cares.” Why do intelligent professionals pass on such fables to each other? Perhaps it is because, when you are knee-deep in raw footage and working on a deadline, you crave certainty.
In fact, such certainty rarely exists in copyright law. There is no “seven-second rule;” there is no “nobody cares” doctrine; and advanced reliance on predictions about fair use (a notoriously uncertain inquiry) is risky at best. For those of you die-hard seven-second rule adherents who still need some convincing, take a look at the Southern District of New York’s recent opinion in Hirsch v. CBS Broadcasting, Inc., which among other things demonstrates that the short length of an allegedly infringing use alone almost never gives rise to a successful copyright infringement defense.
The 48 Hours “Stalked” Episode
Back in 2010, Ivanka Trump was among the victims of alleged stalker Justin Massler. In April 2010, photojournalist Steven Hirsch snapped a photograph of Massler outside a Manhattan courthouse. The New York Post licensed the photograph from Hirsch and included it in an article about Massler.
Seven years later, in early 2017, the CBS news program 48 Hours aired a multi-part series called Stalked, which included a segment focused on Massler. To illustrate the point that Massler’s stalking of Trump “was a huge story in 2010,” the 48 Hours segment depicted a two-second rotating screenshot of the New York Post article, which included the headline and most of Hirsch’s photograph.
Hirsch filed a complaint in the Southern District of New York, alleging that CBS infringed his copyright in the photograph. CBS moved to dismiss, arguing that its fleeting use of the photograph was de minimis and also protected by the fair use doctrine as a matter of law. The Court denied the motion, allowing Hirsch’s case to proceed. Let’s take a look at the two defenses asserted and why the length of the clip didn’t really help either one.
The De Minimis Defense
The closest thing in actual copyright law to the “seven-second rule” fable is the de minimis defense, which derives from the legal maxim “de minimis non curat lex” (the law does not concern itself with trifles). In copyright law, the de minimis doctrine is not truly a separate defense but an extension of the elements of copyright infringement: to prove copyright infringement, you must prove copying, which can be done with a showing that the copyrighted work and the allegedly infringing work are “substantially similar.” Where copying has occurred but it is so trivial that the works cannot really be said to be substantially similar, the copying is considered to be de minimis and therefore non-actionable.
Substantial similarity includes both a qualitative and quantitative component. Because the Hirsch photograph was qualitatively unaltered by 48 Hours (i.e., the clip depicted an exact copy), CBS focused its argument on the quantitative component, which the Court held “generally concerns the amount of the copyrighted work that is copied,” “the length of time the copied work is observable in the allegedly infringing work” as well as such factors as “focus, lighting, camera angles and prominence.” CBS argued that the clip’s mere two second length should carry the day on its de minimis defense, but the Court was “not aware of any authority that such a brief period alone defeats, as a matter of law, a finding of substantial similarity.”
In other words, the length of the use is a factor, but one that is easily and often rendered unimportant by other contextual elements such as focus, lighting, camera angles and perhaps most importantly, prominence. For example, CBS cited a case (Gottlieb Development LLC v. Paramount Pictures) in which the use of copyrighted piece of art for several seconds in the background of a movie scene was considered de minimis. Although the length of the use in that case was actually longer than the clip of Hirsch’s photograph, far more important to the analysis was the fact that that the copyrighted art was “always in the background” and partially obscured.
What is the takeaway? When you are hoping to use the de minimis doctrine to justify depicting someone else’s copyrighted work, the length of the depiction likely may matter far less than other contextual factors, particularly prominence. In Hirsch, the clip was short, but it included an exact copy of a substantial portion of the copyrighted work (i.e., a qualitative substantial similarity), and the Court found that this exact copy was featured in a prominent manner despite its short length (i.e., a quantitative substantial similarity).
The Fair Use Defense
The Court also rejected CBS’s argument that its fair use defense was so obvious as to require dismissal. The fair use doctrine is a four-part balancing test set forth at 17 U.S.C. § 107. It bars copyright infringement liability where a copyrighted work is reproduced for purposes such as criticism, comment, news reporting, teaching, scholarship or research. Whether the doctrine is applicable in an individual case depends in large part on four enumerated factors: (1) the purpose and character of the defendant’s use; (2) the nature of the plaintiff’s work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the defendant’s use on the plaintiff’s potential market.
The first factor is usually the most important one. In analyzing the “purpose and character” of the use, many Courts first and foremost ask whether the use was “transformative,” that is, whether it merely superseded the original or added something substantively new or different. CBS argued that its use of the photograph was “highly transformative” because, whereas the image was originally used by Hirsch to depict Massler as part of a contemporary news event, CBS used it years later to provide “historical context” (i.e., to report on the earlier reporting). But the Court focused on the fact that CBS made no substantive physical change to the photograph, and thus any transformative nature of the use was not “self-evident” based on visual inspection. Therefore, dismissal was not appropriate. The “newsworthiness” of the photograph “is not enough,” according to the Court; there must be some showing after discovery that CBS’s use of the photograph was transformative because it provided some “new [and presumably non-visual] insights and understandings.”
Notably, when analyzing the fair use defense, the Court didn’t give a fig about the short length of the clip. In fact, one could argue that a longer clip could have made for a stronger fair use defense. This will take some explaining. Say you want to comment on someone else’s work, which we’ll call “X.” The fair use doctrine is premised on the idea that, in order to comment on X, you may need to copy some of X (or “conjure up” X) so you can show the object of your commentary, and this copying is considered “fair.” For example, a parodic novel like The Wind Done Gone may fairly copy a whole lot of protected elements from the thing it is parodying (Gone with the Wind) or the parody will not work. But if your commentary is not really about X, but about Y, then you don’t have a fair reason for copying X. For example, the Ninth Circuit has held that a book parodying the O.J. Simpson trial, as told by a Dr. Seuss character, is not a fair use of Dr. Seuss, because the parody was not about Dr. Seuss; rather, Dr. Seuss was just being used as a gimmicky vehicle to comment on something else. Put another way – you need Scarlett O’Hara to talk about Gone with the Wind, but don’t need Dr. Seuss to talk about O.J.
What does this have to do with the “seven second rule”? Well, in the Hirsch case, CBS will seek to show that it was commenting on the media coverage of a newsworthy event, and that this commentary necessitated showing that media coverage, in this case the clip of New York Post article and Hirsch’s photograph. Hirsch, on the other hand, will likely seek to show that CBS was in fact not using the photograph to talk about the photograph, but rather using it as a gimmicky shortcut to illustrate something else. One could argue that a longer clip, one which lingered on the article and/or made some substantive reference to its specific content, would have made a more convincing case that CBS was indeed fairly conjuring up a copy of the article in order to discuss that article or the media coverage of which it was a part.
All that being said, CBS hasn’t lost the case yet. Following the denial of the motion to dismiss, the Court scheduled an approximately six-month discovery period, after which CBS will likely return to the Court on summary judgment to make the same arguments under a more movant-friendly standard. Nobody ought to be surprised if CBS prevails. But if it does, it will be because there is no genuine dispute that CBS was in fact engaged in protected First Amendment activity and fairly commenting on the media coverage of Justin Massler, not because it did so in fewer than seven seconds.