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“De minimis” Copying 417
puppy with a bouquet of flowers and balloons under a rainbow with the superimposed
text “i wuv you.” American Greetings creates a card with an almost identical arrangement
of its own cute puppy with flowers and balloons, and a generic rainbow that also reads
“i wuv you.”
2.) DJ JJ samples the catchy four-note hook from your song and includes it in the
introduction to her song, which is otherwise entirely different from your work.
3.) A fan develops a South Park trivia game that contains multiple-choice questions
about the key characters and events in all of the episodes to date, duplicating fragmentary
details from the series in an entirely different (text-only) format.
4.) Revisit James’s novel about Hamnet. Under which test is he most likely to win?
In practice, tests have evolved and overlapped over time, and courts have tried to
fine-tune them so that they converge on a reasonable, fact-specific analysis of whether
there has been appropriation sufficient to amount to infringement.
One final wrinkle. Because copyright is a strict liability system, infringement may
result even when one subconsciously copies another’s work. In the words of Learned
Hand: “Everything registers somewhere in our memories, and no one can tell what may
evoke it. . . . The author’s copyright is an absolute right to prevent others from copying
his original collocation of words or notes, and does not depend upon the infringer’s good
faith. Once it appears that another has in fact used the copyright as the source of his
production, he has invaded the author’s rights. It is no excuse that in so doing his memory
has played him a trick.” Fred Fisher, Inc. v. Dillingham, 298 F. 145 (S.D.N.Y. 1924); see
also Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177 (S.D.N.Y. 1976), aff’d,
ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir. 1983). Do you agree?
What are the dangers of holding creators liable for subconscious copying? How about the
dangers of limiting infringement to instances of intentional copying? How does this
doctrine fit with the idea that independent creation—us both coming up with the same
sonnet independently—is not copyright infringement?
e.) “De minimis” Copying
When is copying not copying? When it is de minimis. It is hornbook law that trivial
or “de minimis” copying does not constitute actionable copyright infringement. This is a
copyright specific embodiment of the general common law principle that “de minimis
non curat lex”—the law does not concern itself with trifles. (Any first year law student
could tell you that the law frequently concerns itself with trifles, but the principle is a
general one.)
Before we begin: Please note that it’s de minimis, not de minimUS, a common
misspelling.
Many people assume that there is an accepted quantitative threshold for de minimis
copying, and that—depending on the medium—any use of fewer than 10 seconds, 2
sentences, 6 notes, or the like is non-infringing. As you will see below, there is no brightline
rule, and the inquiry is much more complex and fact-specific.