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October 2023

Federal Court Holds that Incidental Capture of Photos in Background of Documentary Film is Fair Use

By Adam Rich and Samuel Bayard

In September, a federal judge in the Southern District of New York dismissed an art photographer’s copyright claim, holding that the incidental use of his photographs in a documentary film was fair use, as well as a non-actionable de minimis use.  Kelley v. Morning Bee, Inc., 1:21-cv-8420-GHW, 2023 WL 6276690, at *10 (S.D.N.Y. Sept. 26, 2023).  The decision promises to be a helpful win for documentary filmmakers. 


In 2021, Morning Bee produced a documentary film about pop singer Billie Eilish entitled, “Billie Eilish:  The World’s A Little Blurry” (the “Film”).  The Film—which was released on Apple’s streaming platform—chronicles Eilish’s daily life as an extraordinary 19-year-old.  Among other things, it follows her as she records her debut album, ascends to mega-stardom, performs on her world tour, and deals with various personal challenges.

At issue in the lawsuit was a 43-second scene showing Eilish and her family arriving at the Auckland Airport for the New Zealand stop of her world tour.  As Eilish enters the terminal, the Film captures her being greeted by Hātea Kapa Haka, a traditional Māori musical group that performs one of her songs. 

At the time, the Auckland airport just happened to be exhibiting a series of aviation-themed photographs (the “Photographs”) taken by Plaintiff Michael Kelley.  In the Film, the Māori performers are shown performing in the same room as the Photographs, though, as illustrated in the still below, the camera is focused on the performers, not Plaintiff’s photographs that hang on the walls around them:

In his Complaint, Plaintiff—a professional photographer whose images of architecture and aircrafts have appeared in various other exhibits, publications, and advertisements—alleged that Morning Bee and Apple (together, “Defendants”) were liable for copyright infringement, because the Photographs were reproduced and publicly displayed in the Film without his permission. 

The Court’s Decision

Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds that the use of the Photographs in the Film was de minimis and also fair use.  The Court agreed, dismissing Plaintiff’s claim with prejudice.

A.  De Minimis Use

First, the Court held that Plaintiff failed as a matter of law to state a copyright infringement claim, because the complaint did not plausibly plead any substantial similarity between his Photographs and the Film.  Id. at * 5 (“[W]hen the copying ‘has occurred to such a trivial extent as to fall below the quantitative threshold of substantial similarity’—it is not unlawful.”) (citing Ringgold v. Black Ent. Television, Inc., 126 F.3d 70, at 74–75 (2d Cir. 1997)).

In reaching its finding that any copying of Plaintiff’s Photographs was trivial or de minimis, the Court conducted a highly fact-intensive analysis of the five distinct shots in the 43-second scene, carefully considering how each of the Photographs would be viewed by a lay observer.  Kelley, 2023 WL 6276690, at *6.  For example, the Court noted that the entire Film is 140 minutes, but that each of the Photographs appear fleetingly, no longer than 7-14 seconds each, or “approximately 0.18 percent of the Film’s total screentime.”  Id.  Moreover, the Court noted that the Photographs “are oftentimes obstructed, out of focus, under low lighting, displayed at an angle to the viewer, and at all times in the background.”  Id.  In certain shots, the Court found that the Photographs were almost completely obstructed, and in other shots, the Photographs were “so out of focus and dimly lit that their subject matter (airplanes) is indiscernible; and a lay observer would likewise strain their eyes to recognize . . . Plaintiff’s photograph.”  Id. at *9.

The Court also evaluated the qualitative use of the Photographs, and found that to be de minimis as well.  Id. at *10 (“At no point are any of the ten photographs at issue . . . commented upon in the audio or discussed in any way—in any shot of the fifteen cumulative seconds during which any photograph appears in the 140-minute-long documentary.”).

The Court compared these facts to those in Ringgold, where the Second Circuit found that brief glimpses of a painting used to decorate the set of a television program constituted copyright infringement.  Id. (citing Ringgold, 126 F3d at 76-77).  In particular, the Second Circuit found in that case that repeated shots of the plaintiff’s work, although brief, had a cumulative, striking visual effect on the viewer.  Id.  The same was not true here, the Court found.  Id. at *10 (finding that “the cumulative screentime of the [Photographs in the Film] was approximately one-tenth of the Ringgold total screentime percentage”). 

Rather, the Court found, that the use of the Photographs in the Film was closer to the de minimis use considered in Gottlieb Dev. LLC v. Paramount Pictures Corp., 590 F. Supp. 2d 625, 632 (S.D.N.Y. 2008).  There, the plaintiff claimed that the defendant infringed the copyright in designs on a pinball machine by including the machine in the background of a scene in the movie What Women Want.  Id. at 629.  Although the machine appeared in the film for about three minutes, the court noted that the machine “is always in the background . . . never appears by itself or in a close-up . . . is never mentioned and plays no role in the plot.”  Id. at 632.  It also observed that “[i]t is almost always partially obscured . . . and is fully visible for only a few seconds during the entire scene.”  Id. 

For all of these reasons, the Court held that “[t]he trivial use of each photograph in the Film’s scene does not rise to the level of actionable copying.”  Kelley, 2023 WL 6276690, at *10.

B.  Fair Use

Next, the Court held that even if the use of the Photographs in the Film were not de minimis, it would be fair use, based on a consideration of the four factors set forth in 17 U.S.C. § 107.

1.  Purpose and Character of the Work

As to the first fair use factor, the Court observed that the Photographs and the Film “serve unquestionably different purposes.” Kelley, 2023 WL 6276690, at *12.  While the Plaintiff said that his works “comment upon and capture the spirit of modern aviation,” the Photographs “incidentally appear in the background of the Documentary as part of the film’s larger purpose of documenting Eilish’s life and career, including her world tour that took her to the New Zealand airport.”  Id.  This, the Court held, was “indeed a transformative use, as the ‘purpose in using the copyrighted images . . . is plainly different from the original purpose for which they were created.’”  Id. (quoting Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006)).  As the Court observed, “Plaintiff’s ‘Airportraits’ series is a highly curated work of fine art, depicting and commenting upon modern aviation; the secondary work, in turn, is a celebrity streaming documentary, showing the life and ascendance to fame of a teenage pop artist.”  Id. at *12.

Significantly, the Court focused on the public policy basis for copyright law, a rationale it repeated throughout its fair use analysis:

If documentarians had to obtain licenses for every fleeting, incidental capture of a copyrighted work in the background of any given scene, the incentive to create biographical documentaries that accurately represent a subject’s life and movements would be severely curtailed.

Id.  For these reasons, the Court found that the first factor heavily favored a finding of fair use.

2.  Nature of the Copyrighted Work

The Court found that the second factor “is neutral on balance and does not weigh in favor of either party.”  Id.  Even though the Photographs “are unmistakably creative,” the Film was not “the first instance at which the photographs were publicly shown or released,” and thus, the Film “did not remove this decision [about how to show the Photographs] from Plaintiff’s control.”  In any event, the Court noted that “the second factor does not carry much weight in the fair use analysis and is ‘rarely found to be determinative.’”  Id. at *13 (quoting On Davis v. The Gap, Inc., 246 F.3d 152, 175 (2d Cir. 2001)).

3.  Amount and Substantiality of the Portion Used

As to the third factor, the Court applied its analysis of de minimis use.  Id. at *13.  Since the Photographs were shown only fleetingly, and “with minimal observability,” the Court found that this factor strongly favored a finding of fair use. 

4.  Effect of the Use on the Potential Market

The Court found that the fourth factor also heavily favored a finding of fair use.  Id. at *15 (“The Film’s fleeting use of the photographs in the background of a scene depicting a cultural performance cannot reasonably be expected to harm Plaintiff’s ability to license his photographs for publication and use.”). 

The Court rejected Plaintiff’s argument that his license market was harmed by Defendants’ failure to obtain a license in this case.  Id. at *15.  The Court explained that while the fourth fair use factor considers impairment of the plaintiff’s “traditional” licensing market (i.e. for advertisements and magazines), the use at issue here was transformative.  Id. (citing Bill Graham Archives v. Dorling Kindersley Ltd., 448 F. 3d 605, 614 (2d Cir. 2006)).  Moreover, “[i]t seems highly implausible that someone in the market for Plaintiff’s works could find a substitute in the obscured, ill-lit, fleeting images contained in the Film.”  Id. at *15.

Once again, the Court returned to the public policy impetus for finding fair use:

Documentarians cannot be asked to license or blur every single minute, incidental, fleeting depiction of a copyrighted work that happens to appear momentarily in the background of a substantively completely unrelated scene.  Moreover, the incidental copying here was done to achieve a purpose far different from that of the original; thus, “the less likely it is that the copy will serve as a satisfactory substitute for the original.”

Id. (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S.569, 587 (1994)).

5.  Balancing the Fair Use Factors

On balance, the Court found that “Defendants’ transformative, fleeting, and incidental use of Plaintiff’s photographs, which appear in the background of an under-one-minute scene of a 140-minute documentary, is fair use.”  Id. at *15.  It further found that a finding of fair use was consistent with the Constitutional imperative to promote the arts:

To hold otherwise would force documentarians to either blur, or obtain permission and pay licensing fees for every such fleeting, incidental, and momentary capture of any work of art in the background of a completely unrelated scene—where the work has not been consciously chosen for any decorative or thematic purpose, is simply present during the filming of unpredictable, unfolding, real-life events, and does not in any way supplant the market for the original work.  Such a holding would not serve the copyright law’s goal of promoting “the Progress of science and useful Arts.”

Id. (quoting U.S. Const., art. I, § 8, cl. 8).


This decision will be helpful to documentary filmmakers who incidentally capture copyrighted works while documenting actions and events that are of legitimate public concern.  In particular, it provides a strong precedent from a respected federal court for a widespread and longstanding practice in documentary filmmaking, which previously had to be justified through reliance on a decades-old case, Italian Book Corp. v. ABC, Inc., 458 F. Supp. 65 (S.D.N.Y. 1978) (holding that incidental capture of music from a parade float in news coverage of the New York City’s San Gennaro Festival was fair use).  This decision gives documentary creators much-needed breathing room to document real-life activities and events without fear of drawing rent-seeking copyright claims.

Adam Rich and Samuel Bayard of Davis Wright Tremaine LLP represented Defendants Apple Inc. and Morning Bee, Inc.  Plaintiff Michael Kelley was represented by Anthony Meola, Jr. of Offit Kurman.