Using Erotic Poster in Movie

Dear Rich: I've just produced a feature film which will be released in 2011 on DVD and in some countries in theaters. The movie is 93 min long, but there is one shot of 1.5 seconds where is clearly visible a poster of a famous erotic magazine from the 70s. I won't mention the editor as the picture does not have a logo on it, but it's still operating internationally. Shall I contact the editor and pay a fee for the permission or is it considered fair use? Please consider that the poster has been used as part of interior design and the shot where it appears is a part of a series of details of that room. We're sure your heart was in the right place when you attached that image to your email but we can't use topless posters at our blog, (except for this 1936 movie poster) and even if we wanted to, the I.T. Dept. has already invaded our office and scrubbed our hard drive. 

Right, you had a question.  As we've mentioned before, courts sometimes look at these cases - where artwork appears briefly in a film or TV show -- under a "de minimis" analysis. De minimis is not the same as fair use. Apologies to our regular readers for dredging up the same cases, but the two leading ones involve the motion picture Seven and the TV show, Roc.  In Seven, several copyrighted photographs appeared in the film, prompting the copyright owner of the photographs to sue. The court held that the photos "appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable." The court excused the use of the photographs as "de minimis." (Sandoval v. New Line Cinema Corp.) In the Roc case, a court determined that the use of a copyrighted quilt poster for a total of 27 seconds in the background of the TV show, "Roc" was not de minimis.  The court in the Roc case  stated that the poster was clearly visible and recognizable with sufficient observable detail for the "average lay observer " to view the artist's imagery and colorful style. (Ringgold v. Black Entertainment Television). 

Fair use cases. We've included a few fair use cases to consider as well. In one case, use of an 85 second portion (of a five-minute performance) by an opera singer from a two-hour movie, "Carnegie Hall" was not a fair use. Copying one minute and 15 seconds from a 72-minute Charlie Chaplin film and using it in a news report about Chaplin's death was also not a fair use. And it wasn't a fair use when a TV station used 30 seconds from a four minute copyrighted videotape of the 1992 Los Angeles beating of Reginald Denny. On the other hand, it was a fair use, when the  makers of a movie biography of Muhammad Ali used 41 seconds from a boxing match film in their biography. 

Bottom Line Dept. We think one and a half seconds of a poster in a movie will likely be considered de minimis, or in the event you can demonstrate that it's being used for a transformative use, perhaps as a fair use. Unfortunately, there's no guarantee that we're correct and in any case, you would only find out for sure by litigating. Obtaining permission would avoid any uncertainty but it would also alert the copyright owner of your use. It's a tough call and we'd spend more  time researching it for you but we're off to an online HR class about "acceptable workplace download policies."