HBO Wins Stupid Copyright, Trademark Lawsuit Brought By Graffiti Artist Over 2 Seconds Of Background Scenery

from the tag-your-it dept

Whenever a company like HBO gets targeted with a lawsuit over intellectual property concerns, you might think we find it tempting to jump all over them in each and every case. After all, HBO has the distinction of being notably horrible when it comes to enforcing its own IP, from shutting down viewing parties, to offering streaming options, to abusing the the DMCA process just to keep spoilers from existing, as though that could possibly work.

But the truth is the fun we have in cases where these types are found to be in legal trouble over intellectual property only extends to when that legal trouble is in some way warranted. When its not, we find that there is a helpful other party on which to heap our ire. That's the case in a lawsuit HBO recently won against graffiti artist Itoffee R. Gayle, who complained about his work appearing in a scene of the HBO show Vinyl. The court ruled that HBO's use was de minimis, or so fleeting so as to cause no injury and therefore not be actionable.

But just how fleeting was HBO's use? Well...

One episode of the show included a scene of a woman walking down a street in New York City where she passes by a dumpster tagged with graffiti that says “art we all.” The graffiti artist, Itoffee R. Gayle, claims that this depiction violated his copyright and trademark rights. According to his complaint, HBO never tried to contact him or license the graffiti. Of course, as the court agreed, HBO didn’t actually need to try to contact Gayle and no license fee was needed because not all copying is unlawful.

Looking at the use of the graffiti art in the episode, the court notes that Gayle’s claims “are premised on a fleeting shot of barely visible graffiti painted on what appears to be a dumpster in the background of a single scene” and that the art appears for no more than two to three seconds. Two to three seconds. Of an entire episode. Yup, sounds pretty de minimis to me. The court goes on, noting that the graffiti is not pictured by itself or close-up, plays no role in the plot, and “is hard enough to notice when the video is paused at the critical moment. It is next to impossible to notice when viewing the episode in real time.” The judge seems pretty annoyed by the copyright infringement claim, noting that “Gayle’s [claims] border on frivolous.”

I'll say this: the court showed far more patience and restraint than an Honorable Judge Geigner would have to Gayle. To waste the court's time with an argument over both copyright and trademark rights dealing with the background scenery of 2 seconds worth of film is so plainly absurd that anger is the only proper response. This was a clear money-grab and, frankly, one based on a premise of silly. It only takes a moment of backing up and thinking about what motivation HBO had here in using this scenery in this shot to know that nothing untoward was done with Gayle's art. It wasn't a theme, it wasn't featured, it wasn't referenced beyond barely being in the shot. It was entirely incidental.

The trademark claim fell for the same reason.

While Gayle attempts to argue that HBO intentionally picked this particular piece of graffiti art to use in the background, the court concludes, “HBO’s motive in depicting the graffiti is irrelevant to the de minimis inquiry.” The copying is not actionable, because its use was so small, even if there was a thematic reason for it. For similar reasons, the court also rejects Gayle’s trademark claims.

It's long past time that courts start issuing some punishment to those that gum up the court system with this sort of bullshit. If nothing else, putting me in the corner of HBO deserves some sort of punitive action.


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  • icon
    Gary (profile), 21 May 2018 @ 6:10pm

    Dumpster Fire

    So will the Dumpster need to be preserved for 70 years past his death?

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 21 May 2018 @ 6:39pm

    'How dare they not pay for for two seconds of my illegal art!'

    One episode of the show included a scene of a woman walking down a street in New York City where she passes by a dumpster tagged with graffiti that says “art we all.” The graffiti artist, Itoffee R. Gayle, claims that this depiction violated his copyright and trademark rights

    I can only assume that NYC has some rather strange laws regarding graffiti that make it legal to tag city property, as it seems with this lawsuit the artist made it very clear who tagged the dumpster in question, and if that is a crime then he all but handed a conviction to any prosecutor who cares to run with it.

    As for the case itself, it strikes me as a win-win. The idiot artist got slapped down for a hilariously weak cash-grab(though an actual penalty rather than just not winning would have been nice), and HBO was forced to waste some money in court being on the receiving end of a copyright/trademark claim.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 21 May 2018 @ 7:14pm

      Re: 'How dare they not pay for for two seconds of my illegal art!'

      Exactly! And what would the artist say when the dumpster got repainted, or had graffiti removing chemicals applied? He defaces someone else's property and then wants protection for his 'art'?

      As to the trademark, did he actually apply for a trademark? Was that mark being used in commerce? What markets did that mark apply to? Why did the court not take notice of the application of trademark rules and how they apply to this case?

      reply to this | link to this | view in chronology ]

    • icon
      DB (profile), 22 May 2018 @ 8:19am

      Re: 'How dare they not pay for for two seconds of my illegal art!'

      It makes little difference to the analysis, but is this even city property? It may well be the property, or in the custody, of the specific contracted hauling company.

      That would make the art the property of that company, and the company the proper party to bring any lawsuit.

      Was the copyright registered? That's required to recover damages. The trademark might not need to be registered, but the movie company certainly isn't misusing the trademark. Was the art signed? How would the company know who to contact with a request to license the work?

      This lawsuit has so many holes that it's not arguably frivolous, it's absolutely frivolous.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 May 2018 @ 9:23pm

      Re: 'How dare they not pay for for two seconds of my illegal art!'

      Illegal art? "Content creators" won't like to hear that. (No, not you, MAFIAA.)

      reply to this | link to this | view in chronology ]

  • icon
    TKnarr (profile), 21 May 2018 @ 8:11pm

    I almost wish the plaintiff's attorney had gone and found cases where HBO had made the same sort of "any use is infringement, no matter how minor" argument and won, and used that to shoot down HBO's defense here just to drive home to the media companies the point that their idea of how copyright works is just as dangerous for them as it is for the public.

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 22 May 2018 @ 5:59am

      Re: Amusing

      As amusing as that is, it wouldn't mean anything in the long wrong because each determination of fair use requires a separate evaluation. So a ruling that this was or wasn't de minimis or fair use would not carry any weight in later cases. (More or less.)

      reply to this | link to this | view in chronology ]

      • icon
        TKnarr (profile), 22 May 2018 @ 11:27am

        Re: Re: Amusing

        The idea isn't to get a ruling about whether it's de minimis fair use. The idea is to get a ruling that the defendant (HBO) can't raise de minimis fair use as a defense either because they've themselves prevailed on the claim that de minimis use is still infringing or (better, because it'd apply to all media companies and not just HBO) that de minimis use doesn't make it fair use. This would hit the media companies hardest because they have the widest variety of possible-fair-use occurrences in their product and are open to claims from the largest number of copyright holders.

        reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 21 May 2018 @ 8:57pm

    I didn't catch what court this was in, but

    • use was de minimis, or so fleeting so as to cause no injury and therefore not be actionable.

    • no license fee was needed because not all copying is unlawful.

    obviously rule out CAFC.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 May 2018 @ 10:57am

      What Court? [was Re: ]

      I didn't catch what court this was in

      United States District Court, Southern District of New York.

      SDNY.

      You were too lazy to glance at the document?

      The document is embedded right there in Geigner's article. And even if you can't see the embed in your browser, the pdf is accessible.

      You were too lazy to glance at the document? The name of the court is at the top of the document.

      SDNY.

      United States District Court, Southern District of New York.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 22 May 2018 @ 11:48am

        Re: What Court? [was Re: ]

        Might need to get your humor meter checked, it seems to be on the fritz.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 22 May 2018 @ 12:02pm

          Re: Re: What Court? [was Re: ]

          Might need to get your humor meter checked

          It is a eminently notable yet tragic fact, a fact borne out by long and harshly bitter experience, that many or even most distinguished members of the internet commentariat — do not read the fucking articles.

           

          Although, perhaps that's only at those other absurd sites.

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 22 May 2018 @ 12:47pm

            Re: Re: Re: What Court? [was Re: ]

            Unless I am completely off the mark, the original comment had almost nothing to do with the article, rather it was a shot at the CAFC by claiming that it couldn't be them because they would never have found that de minims applies, nor that not all uses require licensing.

            reply to this | link to this | view in chronology ]

            • icon
              Toom1275 (profile), 23 May 2018 @ 5:28am

              Re: Re: Re: Re: What Court? [was Re: ]

              Correct. I was making a jab at how utterly inept CAFC has shown itself to be at undersranding basic copyright concepts.

              Even thoughh the article makes it clear it's not CAFC by mentioning Hon. Judge Geigner, and the link says NY southern district court, I used that I couldn't find that specific court name in the article itself to construct the needle with which to make the jab. Didn't want to be completely unrelated to the article, after all.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 23 May 2018 @ 10:25am

                Re: Re: Re: Re: Re: What Court? [was Re: ]

                …basic copyright concepts.

                Copyright, of course, should under no circumstances ever be confused with trademark.

                For instance, totally unlike copyright law, trademark law occasionally uses the soi disant, ‘Moron in a hurry test.’

                reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 May 2018 @ 9:44pm

    copyright yet again taking a dump on us all

    We can probably presume that the graffiti artist did not own the dumpster, but did he even get any kind of authorization from the owner that might help shield him from being criminally charged with both trespassing and vandalism?

    Or can a criminal act be copyrighted or trademarked? How about that New York sex cult that has the leader brand his women like cattle? Are photographs of those branding scars that have been all over the press an act of copyright infringement?

    Here's a plan: every graffiti artist who might want to ever claim copyright on his "art" must immediately *register* it -- in person -- with both the property owner and the local police.

    A footnote: isn't the word "dumpster" itself still a registered trademark of Dempster Brothers, Inc.?

    reply to this | link to this | view in chronology ]

    • identicon
      Paul, 21 May 2018 @ 10:41pm

      Re: copyright yet again taking a dump on us all

      I recall this situation happening and ending badly for the owner of the building as the court demanded the owner to not remove the paint till after trial. This was of course after the owner sued to allow himself to remove the offending paint.

      reply to this | link to this | view in chronology ]

      • icon
        afn29129 (profile), 21 May 2018 @ 11:54pm

        Re: Re: copyright yet again taking a dump on us all

        There was a recent graffiti event in Florida where the city government insisted that the property paint over the graffiti or else face fines... Inverness Florida if I recall correctly.

        On one hand we have a property owner being told he can't paint his building to cover graffiti and on another hand we have a property owner being told he must paint his building to cover graffiti.

        reply to this | link to this | view in chronology ]

      • icon
        deadspatula (profile), 22 May 2018 @ 8:19am

        Re: Re: copyright yet again taking a dump on us all

        specifically, the owner of a building intended for demolition in the near future authorized one wall to be graffitied until the demolition, and the artists attempted to use the Visual Rights Act to prevent the planned demolition of the building from occurring.

        The court ruled that an injunction (a court order to preserve the building) was unnecessary to protect the interests of the artists, and then later ruled that he should have preserved the building to preserve the artists' interests. Kinda strange and contradictory.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 May 2018 @ 6:06am

    This isn't an artist.

    No true artist wants to use lawsuits to limit the number of people who are exposed to their expression.

    Artists can get stuck in situations where their hands unwittingly tied in matters of IP enforcement by their labels and studios, but I very much doubt this city-permit-holding-vandal is being managed by a huge corporation. He's most likely self-managed.

    This is not a true artist, this is a greedy businessman with an art degree.

    Also, he has a stupid name, maybe that's why he grew up to be such a dick. What the fuck kind of name is Itoffee?

    reply to this | link to this | view in chronology ]

    • identicon
      carlb, 22 May 2018 @ 9:40am

      Re: This isn't an artist?

      We don't know this person's motives. Maybe it's for the money. Maybe this was filed as a joke, parody or bona fide means of making a point. Maybe this was a clever legal manoeuvre to force HBO to acknowledge that fair use and de minimis are valid concepts for use in defence to copyright and trademark claims, so that this case may later be cited as precedent by the next victims whom HBO sue on weak or marginal grounds.

      If this was filed to make a point. Point taken. Kudos.

      reply to this | link to this | view in chronology ]

    • icon
      John85851 (profile), 22 May 2018 @ 10:00am

      Re: This isn't an artist.

      Actually, I'd say this guy is a modern artist. He knows not many people will see his graffiti or if they do see it, they won't even recognize that it's his. So what's a good way to get exposure? Run an ad in a magazine? Not big enough.
      Step 1: Sue HBO and make sure the graffiti put into the public record as part of the court case.
      Step 2: Make sure legal-analysis sites (such as this one) cover the story.
      Step 3: Profit from the exposure bought for just the cost of filing a court case.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 May 2018 @ 6:16am

    de minimis

    So, if 2 seconds qualifies as "de minimis", what about 1/60 of a second, such as a single frame screen shot from a show? Would HBO complain if someone were to start selling posters with such screen shots of their shows?

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 22 May 2018 @ 6:37am

      Re: de minimis

      Remember these are the people who declared their own website as infringing upon their copyrights...

      reply to this | link to this | view in chronology ]

    • identicon
      Qwertygiy, 22 May 2018 @ 3:22pm

      Re: de minimis

      Serious answer: no, because de minimis = the amount of your work that the original work makes up.

      The entire artwork made up, let's say 1% of the screen for two seconds, out of a sixty minute show. 1/100 of 2/60 of 1/60, 1/180,000th of HBO's work.

      However, HBO'S screencapture would be 1/1th of your poster. It's completely their copyrighted material, even though it was a very small part of their entire content. De minimis would not apply.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 May 2018 @ 8:34pm

        Re: Re: de minimis

        If you want to play it like that, then take the weight of the ink making up the image compared to the rest of the poster. De minimis indeed.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 23 May 2018 @ 1:01pm

          Re: Re: Re: de minimis

          They wouldn't be suing over the materials used, but the design. To go equivalent to that, you'd have to include audio, outtakes, the film it was shot on, the cameras used, the microphones used, the cabel broadcast over... it has nothing to do with the work.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 May 2018 @ 7:30am

    So the police should now know the name of the person responsible for the Graffiti and write him a ticket, and then he should be sued for the cost to get that graffiti removed.

    reply to this | link to this | view in chronology ]

  • icon
    Art Dealers (profile), 23 May 2018 @ 12:09am

    We need his Art

    Any one knows where to get any of his Art or Merchandise? HBO should PAY him just because they [used] his ARTWORK.

    reply to this | link to this | view in chronology ]

    • identicon
      SmartGirl, 25 May 2018 @ 7:00am

      Re: We need his Art

      Omg I love Art we All apparel! I get so many compliments on my dadhat! I really hope he wins this case though. You can order merch at artweall.bigcartel.com.

      reply to this | link to this | view in chronology ]


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