Kelley v. Morning Bee Inc.

District court grants defendants’ motion to dismiss photographer’s copyright infringement suit over depiction of his photos in background of scene in documentary film about pop star Billie Eilish, finding that use of photos was both de minimis and fair.

Morning Bee Inc. produced the documentary Billie Eilish: The World's A Little Blurry in 2021 and released it on Apple’s streaming platform, Apple TV+. Plaintiff Michael Kelley, a professional photographer, brought a copyright infringement lawsuit against Morning Bee and Apple alleging that the documentary featured scenes in Auckland Airport with 10 of his copyrighted photographs of airplanes displayed in the background. Defendants did not license the photos or seek his permission to use them. The documentary depicts Eilish’s arrival at the airport during a stop on her world tour, where she was greeted by a Maori cultural group. Kelley’s photographs appeared in the background while the Maoris were performing a rendition of one of Eilish’s songs. The court dismissed the copyright claim, finding that the use of the photos was both de minimis and fair.

The parties did not dispute that Kelley held a valid copyright in his photographs or that defendants copied the photographs in the documentary. Rather, the court focused on whether there was illegal copying due to a substantial similarity between the competing works. The court concluded that defendants’ copying was de minimis, meaning that the copying “occurred to such a trivial extent as to fall below the quantitative threshold of substantial similarity.” The court found that the photographs appeared in various fleeting shots for a total of 15 seconds out of the 140-minute documentary, amounting to approximately 0.18% of the total screen time. This momentary nature of each photograph’s appearance weighed heavily in favor of the court’s finding of de minimis use. The court also found that the photographs appeared in poor lighting and at sharp angles, and they were often obstructed by the Maoris. While some shots featured certain photographs for a longer period of time, the court nonetheless concluded that the photographs were not the focus of the scene. Instead, the focus was on the performance of Eilish’s song and her reaction. The documentary did not discuss or comment on Kelley’s photographs in any way.

The court also concluded that the appearance of the photos in the documentary film was permissible under the doctrine of fair use. As to the first fair use factor—the purpose and character of the allegedly infringing use—the court concluded that defendants’ use was transformative, as the purpose of Kelley’s photographs was to “comment upon and capture the spirit of modern aviation,” while the photographs “incidentally appear in the background” of defendants’ film, the purpose of which was “documenting Eilish’s life and career.”

The court held that the second fair use factor—the nature of the copyrighted work—was neutral, as Kelley’s photographs were creative but had previously been published. The third fair use factor—the amount and substantiality of the portion used—weighed strongly in favor of fair use, as the photographs appeared in clips ranging from seven to 14 seconds long, out of a 140-minute documentary, with “minimal observability.”

Finally, the court found that the fourth fair use factor—the effect on the potential market for the copyrighted work—favored fair use. The court found it “highly implausible” that the fleeting images in defendants’ documentary could be a market substitute for Kelley’s works. The court emphasized that holding otherwise would not serve the copyright law’s goal of promoting the progress of science and useful arts. Documentarians could not be expected to pay licensing fees for every fleeting shot of a work of art that appeared in the background of an unrelated scene, “where the work has not been consciously chosen for any decorative or thematic purpose” but was “simply present during the filming of unpredictable, unfolding, real-life events.” Forcing documentarians to do so would curtail the incentive to create films that accurately represent the subject’s life and movements, the court explained.

Summary prepared by Tal Dickstein and Alex Loh