Gottlieb Development LLC v. Paramount Pictures Corp.
590 F. Supp. 2d 625 (2008)
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Rule of Law:
The unauthorized use of a copyrighted work or trademark in a film is not actionable infringement if the use is so trivial or fleeting as to be considered de minimis. This occurs when the object is barely observable, out of focus, obscured, and plays no role in the plot, failing to cross the quantitative and qualitative threshold of substantial similarity.
Facts:
- Gottlieb Development LLC ('Gottlieb') distributes the 'Silver Slugger' pinball machine, which features copyrighted designs on its backglass and playfield and displays the 'GOTTLIEB' trademark.
- Paramount Pictures Corporation ('Paramount') released the motion picture 'What Women Want' in 2000.
- Without Gottlieb's permission, the Silver Slugger pinball machine appeared in the background of one three-and-a-half-minute scene in the film.
- The pinball machine is shown intermittently for only seconds at a time, is always in the background, and is frequently partially obscured by actors or furniture.
- The copyrighted designs on the machine are never fully visible and are either out of focus or obscured, making them unrecognizable to an average observer.
- The pinball machine is one of several background props in a scene set in an advertising agency's creative space and is never mentioned nor does it play any role in the plot.
Procedural Posture:
- Gottlieb Development LLC filed a complaint against Paramount Pictures Corporation in the U.S. District Court for the Southern District of New York.
- The complaint alleged five causes of action: copyright infringement, trademark infringement, unfair competition, unjust enrichment, and deceptive trade practices.
- Paramount moved to dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6).
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Issue:
Does the brief, intermittent, and obscured appearance of a copyrighted and trademarked pinball machine in the background of a film scene constitute actionable copyright and trademark infringement?
Opinions:
Majority - Chin, District Judge
No, this use does not constitute actionable copyright or trademark infringement. For a copyright claim, even where factual copying occurs, it is not actionable if the use is de minimis—so trivial that it falls below the quantitative threshold of substantial similarity. Here, the pinball machine's appearance is sporadic, brief, and it is always obscured or out of focus in the background. An average lay observer would not be able to discern the protected expressive elements of the designs. For the trademark claim, there is no plausible likelihood of confusion. The trademark is barely visible and appears as a minor background detail; no reasonable viewer would believe that Gottlieb sponsored the film or that Paramount endorsed the pinball machine.
Analysis:
This case provides a clear application of the de minimis defense in copyright and trademark law, particularly for props used in film and television. It establishes that the mere presence of a copyrighted or trademarked item in the background does not automatically constitute infringement. The decision emphasizes a fact-intensive analysis of observability—duration, focus, prominence, and obscurity—to determine if a use is substantial enough to be legally actionable. This precedent gives filmmakers and set designers significant breathing room, confirming that they are unlikely to be held liable for the incidental inclusion of branded or copyrighted items that are not central to the scene and are not clearly depicted.
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