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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  1. 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.

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