The unauthorized placement of a pinball machine in a Mel Gibson movie might have technically violated the copyright laws but it is not actionable, a federal judge has ruled.
Holding that the appearance of a Silver Slugger pinball machine behind Gibson's character in the 2000 film "What Women Want" was "de minimus," Southern District of New York Judge Denny Chin tossed out a suit brought by the machine's trademark owner in Gottlieb Development v. Paramount Pictures Corp., 08 Civ. 2416.
"What Women Want," which also starred Helen Hunt, features Gibson as a chauvinistic advertising executive who, after an accident, gains the ability to "hear" what women are thinking.
In one of the opening scenes, Gibson, Hunt and other employees are seen throwing around marketing ideas in a room at the ad agency. At some points while Gibson is speaking, the Silver Slugger appears in the background, partially obscured, and only for seconds at a time.
Gottlieb Development sued for copyright and trademark infringement, unfair competition and unjust enrichment and deceptive trade practices. Paramount moved to dismiss.
There being no question that actual copying had occurred, Chin turned to the issue of whether the copying was actionable, citing Ringgold v. Black Entertainment T.V. Inc., 126 F.3d 70 (2d Cir. 1997).
"The legal maxim 'de minimus non curat lex' -- 'the law does not concern itself with trifles' -- applies in the copyright context," Chin said. "For example, if the copying is de minimus and so 'trivial' as to fall below the qualitative threshold of substantial similarity, the copying is not actionable."
Chin said that, under the case law, "The observability of the copyrighted work is critical, and courts will consider the length of time the copyrighted work is observable as well as factors such as focus, lighting, camera angles and prominence."
For example, the 2nd U.S. Circuit Court of Appeals found not actionable the display of several photographs in the background, often obstructed or out of focus, for a total of 35.6 seconds in the film "Seven," in Sandoval v. New Line Cinema Corp., 147 F. 3d 215 (1998).
In Ringgold, by comparison, the court found the "de minimus threshold of actionable copying has been crossed" in a case where a copyrighted poster depicting a Sunday school picnic at the Freedom Baptist Church in Atlanta in 1909 was shown several times, sometimes at the center of the screen, in an HBO sitcom about a middle-class black family called "ROC."
Here, Chin said, "The scene in question lasts only three-and-a-half minutes, and the Silver Slugger appears in the scene sporadically, for no more than a few seconds at a time."
"More importantly, the pinball machine is always in the background; it is never seen in the foreground. It never appears by itself or in a close-up. It is never mentioned and plays no role in the plot."
Unlike Ringgold, where there was a "qualitative connection between the poster and the show," Chin said there was no connection between the theme of the film and the pinball machine.
It was also important to the judge that viewers of "What Women Want" would not be struck by anything distinctive about the design of the Silver Slugger.
He said that "the average lay observer; would not be able to discern any distinctive elements of Gottlieb's designs -- the baseball players clad in stylized, futuristic gear. The best that the average lay observer could make out in the background is a typical home-plate layout with baseball players arrayed around it."
After dismissing the copyright claim, Chin dismissed the remaining claims, including the trademark infringement claim because there was no likelihood of confusion "as to the source and sponsorship of Gottlieb's products."
Gottlieb was represented by Gabriel Fischbarg.
Paramount was represented by Peter Zimroth, James Swire and Eleanor Lackman of Arnold & Porter.
