Kelley v. Morning Bee, Inc.

Background

Michael Kelley, a professional photographer, owns copyrights in ten photographs from his “Airportraits” series. The photographs were displayed together at an airport exhibition. Morning Bee, Inc. produced the documentary “Billie Eilish: The World’s A Little Blurry,” which Apple, Inc. released on Apple TV+. The documentary showed the photographs in the background during a scene depicting Billie Eilish’s arrival at the airport.

The scene lasted about 43 seconds, but the photographs appeared for about 15 seconds in total, or approximately 0.18 percent of the 140-minute film. They appeared in five brief shots while performers, Eilish, and her family were the visual focus. The photographs were generally in the background and were often obstructed, out of focus, poorly lit, shown at an angle, or difficult to recognize. The film did not discuss or comment on the photographs. Kelley alleged that the defendants had copied the photographs without permission and sought damages and attorneys’ fees.

Motion to Dismiss

Morning Bee and Apple moved to dismiss the complaint in its entirety. On a motion to dismiss, the court generally evaluates whether the complaint alleges enough facts to state a legally plausible claim. In this copyright case, the court also viewed the film and compared it with Kelley’s photographs because the works themselves control over contradictory descriptions in the pleadings.

De Minimis Use

The court held that Kelley had not plausibly alleged actionable copying. Copyright infringement requires copying that is quantitatively and qualitatively substantial. For visual works, the court considered how long the photographs appeared, their focus and lighting, camera angles, distance, obstruction, prominence, and recognizability from the perspective of an average viewer.

The court found the use de minimis, meaning so trivial that it fell below the legal threshold for substantial similarity. Each photograph appeared only briefly and incidentally. None was shown close-up, in focus, or as the center of attention, and none was discussed or played a role in the film’s plot. The court concluded that the use of each photograph was too limited to support a plausible infringement claim.

Fair Use

The court also held that the use was fair use, an exception that can permit unauthorized use of copyrighted material. It considered the four statutory factors:

1. Purpose and character of the use. This factor strongly favored the defendants. Kelley’s photographs were artistic works about modern aviation, while the documentary used them incidentally while documenting Eilish’s life and tour. The court found that the documentary’s purpose was different and transformative, although the parties agreed that the film was commercial.

2. Nature of the copyrighted work. This factor was neutral. The photographs were creative, which favored Kelley, but they had already been published, which allowed greater room for fair use.

3. Amount and substantiality of the portion used. This factor strongly favored the defendants because the photographs appeared only briefly, were minimally observable, and were used to depict the real-world setting of Eilish’s arrival at the airport.

4. Effect on the potential market. This factor strongly favored the defendants. The court found that fleeting, obscured images in the film were not a substitute for Kelley’s photographs and would not reasonably be expected to harm his ability to license them for publication or display.

Balancing the factors, the court concluded that the defendants’ transformative, fleeting, and incidental use was fair use. The court stated that requiring documentarians to obtain permission or blur every momentary background appearance of copyrighted art in real-life scenes would not serve copyright law’s purpose of promoting creative and artistic work.

Disposition

Judge Gregory H. Woods granted the defendants’ motion to dismiss without leave to amend. The court stated that amendment would be futile because the works were what they were and no change to the allegations could alter the court’s visual comparison. The court dismissed Kelley’s action with prejudice, directed the Clerk to enter judgment for the defendants, and ordered the case closed.