Commons:De minimis
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De minimis is a Latin expression meaning about minimal things, normally in the locution de minimis non curat lex ("The law does not concern itself with trifles"). De minimis use of a copyrighted work is such a trivial use that the consent of the copyright owner is not required.
In some cases Commons files with copyrighted content considered acceptable as de minimis may be identified with the template {{De minimis}}. (However, the vast majority of such files are not identified in this way.)
What is "de minimis"?
The Common Law concept known as de minimis is derived from the maxim de minimis non curat lex, often translated as "the law does not concern itself with trifles". Some technical breaches of the law are considered to be so trivial and inconsequential that a court may decide that they should not be treated as breaches at all. The concept applies to many branches of the law, but here we consider its application specifically to copyright law.
If proved in court, de minimis can be a complete defence to a copyright infringement action. It is not simply that an infringer can get away with some things without much chance of being sued due to the high cost of litigation; rather, that if the copying is de minimis the copier is not in fact breaking the law at all.
An example
Assume we have a photograph with a copyright-protected poster in the background. There are two copyrights involved: that of the photographer and that of the poster-designer, and both may subsist independently. In taking the photograph and uploading it to Commons, the photographer will of course be making a copy of the poster design, and without consent that will generally be an infringement and hence not allowed. The fact that the photographer has created a new copyright of their own does not prevent the poster copyright from being infringed, and that is so even if the photograph displays a high level of originality itself.
However, if the poster is entirely incidental to the overall subject-matter of the photograph, the copying may be considered de minimis (perhaps the poster takes up a small, insignificant part of the image, is entirely out of focus compared with the main subject, or is largely hidden in the background). In other words, a court would not be quick to uphold a claim of copyright infringement just because a photographer happened to include accidentally and incidentally a copyright-protected poster.
In determining whether the copying was sufficiently trivial, the court will consider all the circumstances. So, for example, if the poster forms an essential part of the overall photographic composition, or if the photograph was taken deliberately to include the poster, there is likely to be copyright infringement, and it is no defence to say that the poster was 'just in the background'. If the existence of the poster was the reason the photograph was taken in the first place, copyright infringement cannot be avoided by additionally including within the frame more of the setting or the surrounding area.
If the existence of the poster makes the image more attractive, more usable, or liable to cause more than insignificant economic damage to the copyright owner, then a de minimis defence to a copyright-infringement action will probably fail.
It may be relevant how the image is described or classified: it will be difficult to argue de minimis if the photograph is described as illustrating "an advertising poster" and is placed within the category Advertising posters.
A useful test may be to ask whether the photograph would be as good or as useful if the poster were to be masked out. If no, then it is difficult to argue that the poster is actually de minimis, even if the poster is small and is "in the background".
Guidelines
Variations in laws and in uses of works mean that firm rules are not possible. As a general guideline, however, a file containing copyrighted work X is less likely to satisfy de minimis the more of these it meets:
- the file is in use to illustrate X
- the file is categorised in relation to X
- X is referenced in the filename
- X is referenced in the description
- X cannot be removed from the file without making the file useless
- from other contextual clues (e.g., by comparison with a series of uploads by the same uploader) X is the reason for the creation of the file.
Note: de minimis consideration applies to a specific image composition. Significant cropping to focus on the copyrighted work can very easily turn a "probably OK" into a "probably not OK".
| # | Case can be considered de minimis | Description |
|---|---|---|
| 1 |  OK Yes, definitely
|
Copyrighted work X is visible, but not identifiable.
|
| 2 | OK Very likely
|
Copyrighted work X is identifiable, but is an unwanted intrusion to the image subject which unfortunately cannot easily be removed.
|
| 3 | OK Very likely
|
Copyrighted work X is identifiable, but is a small part of a larger work, so that the larger work cannot easily be shown without showing X. X is a part of the larger work, and its inclusion is unavoidable.
|
| 4 | OK Very likely
|
Copyrighted work X is identifiable and an unavoidable part of the image subject, but is not essential to the subject (blacking it out would not make the file useless).
|
| 5 |  Maybe
|
Copyrighted work X is identifiable and an unavoidable part of the subject, and is essential to the subject (e.g. blacking it out would make the file useless) but the work is shown in insufficient detail and/or with insufficient clarity, so de minimis may apply. |
| 6 |  Very unlikely
|
Copyrighted work X is a key part of the subject (e.g. it is the reason for taking the photo). Removing it would make the derivative work radically different, but potentially still useful.
|
| 7 | Definitely not
|
Copyrighted work X is the central part of the subject (e.g. it is the reason for taking the photo). Removing it would make the derivative work useless.
|
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COM:DM United States
The United States courts interpret the de minimis defense in three distinct ways:
- Where a technical violation is so trivial that the law will not impose legal consequences;
- Where the extent of copying falls below the threshold of substantial similarity (always a required element of actionable copying); and
- In connection with fair use (not relevant here, since Commons does not allow fair use images).
It is the first of these that is often of particular concern on Commons.
As found in Ets-Hokin v. Skyy Spirits, Inc., a photograph of a bottle is not a derivative work of its label (though in this particular case, the label also happened to be below the threshold of originality):
| “ | We need not, however, decide whether the label is copyrightable because Ets-Hokin's product shots are based on the bottle as a whole, not on the label. The whole point of the shots was to capture the bottle in its entirety. The defendants have cited no case holding that a bottle of this nature may be copyrightable, and we are aware of none. Indeed, Skyy's position that photographs of everyday, functional, noncopyrightable objects are subject to analysis as derivative works would deprive both amateur and commercial photographers of their legitimate expectations of copyright protection. Because Ets-Hokin's product shots are shots of the bottle as a whole—a useful article not subject to copyright protection—and not shots merely, or even mainly, of its label, we hold that the bottle does not qualify as a "preexisting work " within the meaning of the Copyright Act. As such, the photos Ets-Hokin took of the bottle cannot be derivative works. | ” |
Country-specific laws
COM:DM Belgium
Belgium
Art. XI.190 of the Code on Economic Law states:
- Once a work has been lawfully published, its author may not prohibit: [...] 2°. reproduction and communication to the public of a work shown in a place accessible to the public where the aim of reproduction or communication to the public is not the work itself [...].
COM:DM Canada
Canada
Subsection 30.7 of the Canadian Copyright Act, 1985 states:
It is not an infringement of copyright to incidentally and not deliberately
(a) include a work or other subject-matter in another work or other subject-matter; or
(b) do any act in relation to a work or other subject-matter that is incidentally and not deliberately included in another work or other subject-matter.
COM:DM Czech Republic
Czech Republic
Under the Consolidated Version of Act No. 121/2000 Coll. as amended up to 216/2006,
- Copyright is not infringed by anybody who uses a work incidentally, in connection with an intended primary use of another work or element.[121/2000–2006 Art.38c]
COM:DM European Union
European Union
The Copyright Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society allows for de minimis exception in Art. 5(3)(i):[1]
- Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: […] incidental inclusion of a work or other subject-matter in other material.
Under the generic conditions of Article 5(5):
- The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightsholder.
COM:DM Finland
Finland
Under the Copyright Act 404/1961, with amendments up to 608/2015,
- Works of art made public may be reproduced in pictorial form in material connection with the text: 1) in a critical or scientific presentation; and 2) in a newspaper or a periodical when reporting on a current event, provided that the work has not been created in order to be reproduced in a newspaper or a periodical.[404/1961–2015 Sec.25(1)]
- When a copy of a work of art has, with the consent of the author, been sold or otherwise permanently transferred, the work of art may be incorporated into a photograph, a film, or a television programme if the reproduction is of a subordinate nature in the photograph, film or programme.[404/1961–2015 Sec.25(2)]
COM:DM France
France
French case law admits an exception if the copyrighted artwork is "accessory compared to the main represented or handled subject" (CA Paris, 27 octobre 1992, Antenne 2 c/ société Spadem, « la représentation d'une œuvre située dans un lieu public n'est licite que lorsqu'elle est accessoire par rapport au sujet principal représenté ou traité »). Thus ruling #567 of March 15, 2005 of the Court of Cassation denied the right of producers of works of arts installed in a public plaza over photographs of the whole plaza:[2]
- Because the Court has noticed that, as it was shown in the incriminated images, the works of Mr X... and Z... blended into the architectural ensemble of the Terreaux plaza, of which it was a mere element, the appeals court correctly deduced that this presentation of the litigious work was accessory to the topic depicted, which was the representation of the plaza, so that the image did not constitute a communication of the litigious work to the public.[3]
French case law states that the said artwork must not be intentionally included as an element of the setting: its presence in the picture must be unavoidable (CA Versailles, 26 janvier 1998, Sté Movie box c/ Spadem et a.):
- It can be considered as an illicit representation of a statue by Maillol, the broadcasting of a commercial in which it appears, as it was not included in a film sequence shot in a natural setting—which would explain the brief and non-essential to the main subject, appearance of the sculpture, which is set in the Tuileries gardens, but used as an element of the setting.
COM:DM Germany
Germany
Under § 57 of the 1965 Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte) (UrhG), "any reproduction, distribution, and communication in public of a work shall be admissible if the work is to be regarded as an immaterial supplement in comparison to the actual subject matter of the reproduction, distribution, or communication in public."
The first step in assessing whether a particular use of a work is covered by § 57 is to determine the actual (primary) subject matter reproduced, distributed, or communicated to the public.[4] The primary subject matter does not itself need to be protected by copyright.[5]To qualify under § 57, the work must not only "fade into the background" or be of "subordinate significance" relative to the primary subject matter; rather, it must not even attain marginal or minor significance.[6]
According to the Federal Court of Justice, this is the case
- if it could be omitted or replaced and the average observer would not notice it (or, in the alternative, the overall impression of the primary subject matter would not be at all affected); or
- if, in light of the circumstances of the case, it bears not even the slightest contextual relationship (inhaltliche Beziehung) to the primary subject matter, but rather is without any significance to it whatsoever due to its randomness and arbitrariness.[7]
The Federal Court of Justice also provided a (non-exhaustive) list of examples where it is "regularly impossible" that the use of a work qualifies as de minimis:
- The work noticeably impacts the style or mood conveyed (erkennbar stil- oder stimmungsbildend);
- the work underscores a particular effect or statement;
- the work serves a dramaturgic purpose; or
- the work is characteristic in any other way.[8]
Note that whether the work can be replaced with another work is relevant only to the extent that if an average observer of the primary subject matter would not notice the work in question because it can be arbitrarily replaced or omitted, this supports a finding of immateriality (see above). However, as soon as it has been established that the work is part of the overall concept (say, because it impacts the mood of the picture), it no longer matters if the work could be replaced: Section 57 does not apply.[9]
Examples of de minimis use from court cases:[10]
There are very few court decisions discussing the German de minimis provision and the 2014 decision by the Federal Court of Justice, which set out the tests expounded above, was the first by Germany's highest court of civil jurisprudence that revolved around § 57.[11] In the case at issue, the Court looked at a photograph in a furniture catalogue depicting several furniture items for sale and a painting on the wall in the background (pictured here, p 3). The Court held that the publisher could not rely on § 57 for its use of the painting after the lower court found that the painting added a "markedly contrasting colour accent". The Court deemed this sufficient to rule out an immaterial use pursuant to § 57. In another decision, the Federal Court of Justice held that the use of a picture of a Spanish city as part of a high-school student's essay on that city does not qualify as de minimis.[12]
In light of the 2014 judgement, older decisions by lower courts will need to be viewed with some caution. That being said, the use of a photograph of an individual wearing a T-shirt with a protected design on the cover page of a magazine (pictured here) was held by the Munich Higher Regional Court in 2008 to fall within the definition of use as an immaterial supplement because the design did not bear any contextual relationship to the primary subject matter due to its randomness and arbitrariness.[13]
COM:DM Iceland
Iceland
An unofficial translation of Article 10a of the Icelandic copyright act reads:
- Authors’ exclusive rights under Article 3 (cf. Article 2), shall not apply to the making of reproductions (copies) that are transient or incidental...[73/1972-2018 Art.10a(1)]
COM:DM Ireland
Republic of Ireland
Under the Copyright and Related Rights Act, 2000 (No. 28 of 2000),
- The copyright in a work is not infringed by its inclusion in an incidental manner in another work.[28/2000 Sec.52(1)]
- A work shall not be regarded as included in an incidental manner in another work where it is included in a manner where the interests of the owner of the copyright are unreasonably prejudiced.[28/2000 Sec.52(3)]
According to Pascal Kamina, the Irish legislation is similar to the legislation in the United Kingdom from 1988.[14]
COM:DM Israel
Israel
According to 2007 Copyright Act, section 22:
- An incidental use of a work by way of including it in a photographic work, in a cinematographic work or in a sound recording, as well as the use of a such work in which the work was thus incidentally contained, is permitted; In this matter the deliberate inclusion of a musical work, including its accompanying lyrics, or of a sound recording embodying such musical work, in another work, shall not be deemed to be an incidental use.[2007-2011 Sec.22]
COM:DM Japan
Japan
Copyright Act Article 30-2, amended in 2012, states:
- Article 30-2: When creating a copyrighted work of photography, sound recording or video recording, other copyrighted items that are incidental subjects of the work because they are hard to be separated from the item that is a subject of the work may be copied or translated along the work being created (only if they are minor components of the work being created). However, if, considering the kinds of the incidentally included works and the manner of the copying or translation, it unfairly is prejudicial to the interest of the copyright holders of the incidentally included works, they may not.[15]
COM:DM Netherlands
Netherlands
The law of the Netherlands includes an article devoted to a situation where the copyright is not or barely relevant. This is called de minimus or bagatel. Based on this article, it is allowed to include work of other persons in an own work, but only if it is incidental or of minor significance. "Incidental" means that the presence of the copyrighted work is more or less by chance. Of minor significance means the copyrighted work is a small part of the work.
Translated text from Art.18 of the Auteurswet of the Netherlands:
- The incidental processing of a copyrighted work as a part of minor significance in another work is not considered an infringement of the copyright of the first mentioned work.
- Sources
COM:DM Morocco
Morocco
"It shall be permitted, without the author’s authorization or payment of a fee, to republish, broadcast or communicate to the public by cable an image of a work of architecture, a work of fine art, a photographic work, or a work of applied art which is permanently located in a place open to the public, unless the image of the work is the main subject of such a reproduction, broadcast or communication and if it is used for commercial purposes".[1-05-192/2006 Art.20]
COM:DM Peru
Peru
There is subtle mention of "de minimis" in determinate cases:
- Media for private use, non-profit educative events or extracts of musical works in official events.[822/1996 Art.41(a, b and c)] In other words, the sentence is equivalent to Fair use and is unacceptable to upload in Commons.
- Broadcasting of well-known quotations and current events in any media.[16] "The exception provided [...] shall be interpreted restrictively, and may not be applied to cases that are contrary to proper practice".[822/1996 Art. 44-45, 50 and Decision 351 Art. 22]
- Don't be an object of intelligent plagiarism ("plagio inteligente", also referred in Article 217c of the Penal Code, 2007):
- Parodies: Allowed within the legal basis.[822/1996 Art. 49] Resolution No. 0864-2007/TPI-INDECOPI (also No. 4372-2013/TPI-INDECOPI) pointed out that the work is a infringement if the design adopts similarities or derivations from another without the parody intention (ordinary or substantial plagiarism). Best example is the 2008 TV series Magnolia Merino, which complies with the concept of parody when deals with a subject of public interest from other artistic point of view with excerpts based on the scenario, impersonation and musicalization of Magaly TeVe (see Resolution No. 3251–2010/SC1-INDECOPI).[17]
- Incidental: In APSAV v. Arkinka S.A. (Anuario Andino 19 August 2004, based on Resolution No. 243-2001/ODA-INDECOPI) the limitation of the use of third parties works has been applied when "the appearance within the work should be incidental". Freedom of panorama is also mentioned and justified in both Decision 351 and DL 822 with the term "public places" such as "public museums".[18]
COM:DM Saint Kitts and Nevis
Saint Kitts and Nevis
- Copyright in a work shall not be infringed (a) by its incidental inclusion in an artistic work, sound recording film, broadcast or cable programme; or (b) by the issue to the public of copies of the playing, showing, broadcasting or inclusion in a cable programme service of anything whose making was not an infringement of copyright by virtue of paragraph (a) of this section.[18.08/2000 Section 55]
COM:DM Singapore
Singapore
Under section 10(1) of the Copyright Act (Cap. 63, 2006 Rev. Ed.) of Singapore, unless a contrary intention appears:
- a reference to the doing of an act in relation to a work or other subject-matter shall be read as including a reference to the doing of that act in relation to a substantial part of the work or other subject-matter; and
- a reference to a reproduction, adaptation or copy of a work shall be read as including a reference to a reproduction, adaptation or copy of a substantial part of the work, as the case may be.
Therefore, acts done in relation to insubstantial parts of a work or other subject-matter do not breach copyright.
COM:DM Slovenia
Slovenia
Article 52 of the Copyright and Related Rights Act:
- "Such disclosed works that may be regarded as accessory works of secondary importance with regard to the actual purpose of some material object, may be used freely while exploiting such object."[2007 Art.52]
Article 52 has been interpreted by the copyright expert Miha Trampuž in his book Copyright and Related Rights Act with Commentary. He has highlighted the following aspects: the work must have been disclosed, it must have been incidental with another object or work, it could be at will replaced with another work, and it is inessential in the copyright sense to the object or work.[19]
See Commons:Deletion requests/File:Postcard of Ljubljana, Prešeren Square (3).jpg.
COM:DM South Korea
South Korea
Under the Copyright Act (as amended up to Act No. 16600 of November 26, 2019),
- Article 35-3 (Incidental Inclusion, etc.),
- A work seen or heard in the courses of photographing, voice recording, or video recording (hereinafter referred to as "shooting, etc." in this Article), where it is incidentally included in the main object of shooting, etc., may be reproduced, distributed, performed in public, displayed, or publicly transmited. That where it unreasonably prejudices the interest of the holder of author's economic right in light of the type and nature of the used work, the purpose and character of use, etc, the same shall not apply.
COM:DM Sweden
Sweden
Article 20a of the copyright law as of 2017 says:
- It is allowed for a film or television program to include copies of works of art or public performances and transfer the artwork to the public, as long as the copy is of secondary importance with respect to the film or television program content. This may be done with artwork that appears in the background of, or otherwise forms an insignificant portion of an image.[729/1960-2017 §20a]
These are Not OK:
- Thumbnail-sized photos on a screenshot - copyvio of two of the thumbnail-sized photos (NJA 2010 p. 135[1])
- People on a scene with decorations in the background - copyvio of the background (NJA 1981 p. 313)
COM:DM United Kingdom
United Kingdom
Section 31 of the UK Copyright, Designs and patents Act 1988, as subsequently amended in 2003, states that:
- Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film, or broadcast.
"Artistic work", as defined within the act, includes photographs.
Crops of de minimis images
Since an image which is allowable under the de minimis principle must of necessity include some copyright material, it follows that such images cannot be cropped at will. For the case of a photograph which includes a poster, even if the photographer has a defence against infringement on the de minimis principle, that does not negate the original poster-designer's copyright. If someone takes the photograph and crops it so that only the poster remains, the de minimis defence is no longer available, as the poster design then becomes an essential part of the crop. So, the cropped version infringes and cannot be allowed on Commons.
Note that the mere fact that an image allowable under de minimis may be cropped to create one which is not allowable does not imply that the original work is not de minimis after all. Even very high resolution images, in which incidental details can be reliably recovered and magnified, should be viewed as a whole from a normal viewing distance when considering whether de minimis applies.
Examples
-
Burj Khalifa (UAE allows freedom of panorama only when used in broadcast programs.) (DR) -
Maybe a series of photographs exhibited in a museum → de minimis (DR) -
Artwork by Escher in the center (DR) -
North gate of the Expo 2005 Aichi Japan with copyrighted works on its wall -
The artwork of a flying fish covering the aircraft is considered incidental (DR) -
Lotte World Tower (South Korea allows freedom of panorama only noncommercial purposes.) (DR)
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See also
- Commons:Threshold of originality
- Commons:Freedom of panorama
- A discussion about de minimis in videos
- Cromer, Julie, Harry Potter and the Three-Second Crime: Are We Vanishing the De Minimis Defense from Copyright Law?
Notes
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