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December 01, 2020 Feature

This Is Not Another Fair Use Article: The Implied License and De Minimis Use Copyright Defenses

Scott J. Sholder and Sara Gates

©2020. Published in Landslide, Vol. 13, No. 2, November/December 2020, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

What do tattoos and building-sized murals have in common? These two very different modes of creative expression have featured prominently in recent, noteworthy copyright litigations that have stoked the flames of debate over whether certain users of segments of creative works should be liable for copyright infringement. But the debate has not been over the issue of fair use—rather, it centers on lesser-known and sometimes overlooked defenses, namely, implied license and de minimis use.

In Solid Oak Sketches, LLC v. 2K Games, Inc., a Manhattan federal judge dismissed a tattoo licensing company’s copyright infringement claim against two video game companies that developed and published basketball simulation games depicting realistic renderings of NBA players and their tattoos.1 Across the bridge in Brooklyn, another federal judge, in LMNOPI v. XYZ Films, LLC, dismissed a copyright action against a film production company that had depicted a mural in the opening scene of a film without the artists’ permission.2 There are many more decisions of this ilk that tend to float under the radar but warrant a brighter spotlight, some of which are discussed below.

While varied in their requirements and applications throughout the federal circuits and in various factual scenarios, implied license and de minimis use serve a unified purpose, and one consistent with their cousin, fair use—namely, to allow the reasonable use of copyrighted works without infringement liability. This article examines the backgrounds of these two less frequently discussed copyright defenses and how they have evolved and come into recent prominence through, among other cases, the Solid Oak and LMNOPI decisions.

Implied Licenses in Copyright Law

One of the prominent affirmative defenses arising in copyright cases in recent years is the implied nonexclusive license. Courts have considered the defense in copyright cases involving architectural designs, images, drawings, DVD recordings of theatrical performances, and, of course, tattoos. In each instance, the defendants have asserted that, while there is no signed written transfer of exclusive rights pursuant to § 204 of the Copyright Act, there is a nonexclusive license for certain, specific uses created by implication. Similar to a written license, the burden is on the proponent of the defense to prove the existence of the implied license and that it covers the use in question.3 While demonstrating that the use is covered would be easy when some writing delineates the scope of the permitted uses, the burden becomes much heavier for the defendant to bear when the license is based on the undocumented intentions or conduct of the parties.

The threshold question, of course, is how is an implied license created? The answer is a lawyerly, “it depends.” Generally, implied licenses arise based on the specific circumstances of the case, including whether there are writings showing that the parties intended that the copyrighted work would be used for a specific purpose, or in the case of oral implied licenses, by the conduct of the parties.4 Though courts’ analyses of whether an implied license exists vary by jurisdiction, courts primarily focus on the copyright owner’s objective intention in creating and providing the work to the user.

Three-Factor Framework vs. Totality of the Circumstances

Specifically, courts in most circuits have found an implied license exists where (1) a person (the licensee) requested the work, (2) a creator (the licensor) created and delivered the work, and (3) the licensor intended that the licensee would further copy and distribute the work. Largely derived from the Ninth Circuit’s 1990 decision in Effects Associates, Inc. v. Cohen5—one of the early originators of the implied license defense in copyright infringement actions6—this framework was widely adopted by the Third, Fourth, Fifth, Sixth, Seventh, Eleventh, and D.C. Circuits as the standard for implied licenses.7 More recently, while some courts still employ a rigid application of the request-delivery-intent framework, requiring that the defendant establish all three elements,8 other courts have eased back on such categorical restrictions, finding the existence of an implied license where not all the elements are strictly satisfied.

For example, the First Circuit has rebuffed the traditional framework and focuses on the copyright owner’s intent as the “touchstone for determining whether . . . an implied license has been granted.”9 The court took this position because it noted that while many courts purport to follow the three-factor framework, they, in fact, quickly pass over the first two prongs—request and delivery—and instead focus on the manifestations of the creator’s intent.10 In analyzing intent, the First Circuit considers three additional factors (adopted from the Fourth Circuit) but acknowledges that they are nonexhaustive:

(1) whether the parties were engaged in a short-term discrete transaction as opposed to an ongoing relationship; (2) whether the creator utilized written contracts . . . providing that copyrighted materials could only be used with the creator’s future involvement or express permission; and (3) whether the creator’s conduct during the creation or delivery of the copyrighted material indicated that use of the material without the creator’s involvement or consent was permissible.11

Courts in other circuits have likewise recognized implied licenses in varying circumstances, without strict satisfaction of the three elements. Notably, the Ninth Circuit was persuaded by the First Circuit’s approach and has since moved away from a rigid three-factor framework.12 For instance, in a case where the plaintiff regularly provided images to a publisher, the court found an implied license existed where the parties had an ongoing relationship; and while the copyright owner did not produce content at the publisher’s specific request, it sent images to the publisher for years, and the publisher regularly published the content supplied.13

Similarly, in the Fifth Circuit, though the court applied the three-factor framework in a 1997 case,14 it has since pointed out that those three elements are not required and has “never held that an implied license could not arise in other circumstances where the totality of the parties’ conduct supported such an outcome.”15 The Fifth Circuit has also stated that consent for an implied license can be formed either through affirmative permission or lack of objection.16

The Second Circuit, for its part, has not ruled on the precise circumstances under which an implied license may be found. Although it has noted that “courts have found implied licenses only in ‘narrow’ circumstances where one party ‘created a work at [the other’s] request and handed it over, intending that [the other] copy and distribute it’” (citing Effects),17 the Second Circuit has not yet had the occasion to decide whether an implied license exists under more fluid circumstances. Courts within the Second Circuit, however, have diverged on the proper test for the existence of an implied license, with some applying the three-factor framework18 and others considering whether the totality of the parties’ conduct indicates an intent to grant permission to use the copyrighted work.19 The ground seems fertile for the Second Circuit to resolve the district court split.

Implied Licenses in Tattoo Cases

In the Solid Oak case, Judge Swain of the Southern District of New York adopted the more rigid tripartite approach of the request-delivery-intent framework.20 The case pitted Solid Oak Sketches, a tattoo licensing company, against 2K Games and Take-Two Interactive Software (2K’s parent company), which developed and published the “2K” basketball simulation video games featuring realistic depictions of NBA players. Indeed, the depictions of well-known professional players, including LeBron James, Eric Bledsoe, and Kenyon Martin, were so realistic that they even included the players’ signature tattoos. Solid Oak, which had obtained the exclusive rights in the three above-mentioned players’ tattoos from the tattoo artists, asserted a copyright infringement claim against the video game companies. 2K and Take-Two filed counterclaims, including for a declaratory judgment, and asserted a host of defenses, including the existence of an implied license, de minimis use, and fair use.

On the defendants’ summary judgment motion, the court held that Solid Oak’s copyright infringement claim must fail for a number of reasons, including because the defendants established that the tattoo artists had previously granted the players nonexclusive licenses to use the tattoos as part of their likenesses. The court concluded that the facts before it, based on the declarations of two of the tattoo artists and one of the game developers, strictly satisfied the three-factor test: (1) the players each requested the tattoos, (2) the tattoo artists created the tattoos and inked them on the players’ bodies, and (3) the tattoo artists intended that the players would copy and distribute the tattoos as elements of their likenesses. In discussing the intent element, the court found that each tattoo artist knew that the players were likely to appear “in public, on television, in commercials, or in other forms of media.”21 Because no limitations on the display or depiction of the tattoos were discussed, the players therefore had implied licenses to use the tattoos as elements of their likenesses, and the artists even admitted as much in their sworn statements. And by the players giving the NBA the right to license their likeness to third parties, including for use in the video games, the license extended to the defendants.

Solid Oak was the first case to substantively answer the question of whether the implied license defense may be used to evade a copyright infringement claim involving the depiction of a tattoo. Although tattoos have played a role in other copyright infringement cases, most have not reached a full judicial resolution on the merits. Indeed, at least two high-profile cases have settled before courts have had the occasion to consider potentially meritorious defenses.22

While the Solid Oak holding suggests that the implied license defense could aid others who use tattoos in connection with depicting a person’s likeness without the creator’s express permission, the decision may be unique in that it involved celebrity athletes, who the tattoo artists surely knew would prominently display their tattoos both on and off the court. Whether a court—either applying the three-factor framework or looking at the totality of the circumstances—would reach the same conclusion in the case of an “average Joe” is uncertain. But, from a common-sense approach, it seems that, in most circumstances, tattoo artists would intend, or at least know, that their art will be publicly displayed, given that the artists have no control over their work once it walks out of the shop; and in any event, the customer is a walking billboard for the artists’ work, displaying it for future clients.

De Minimis Use: The New Fair Use?

“De minimis” use is another defense to copyright infringement, alongside implied license, that has garnered recent attention in high-profile cases. The Latin phrase de minimis non curat lex means the law does not concern itself with trifles. Fittingly, the de minimis use defense arises in instances in which the use of the copyrighted work is “so trivial ‘as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying.’”23 If what is copied is so minuscule that it cannot, as a matter of law, be considered substantially similar to the original, then there is no infringement.

This maxim has been part of the American copyright lexicon for decades.24 But it is no surprise that, in a technological epoch where anyone can crop a digital photo, edit down a video or sound clip, or take a screenshot using almost any personal digital device, de minimis use is at the forefront of the copyright landscape.

In analyzing whether a use is de minimis, courts look to the quantitative amount copied as well as the qualitative similarity between the two works from the perspective of a lay observer.25 The quantitative aspect, as framed by the Second Circuit in the landmark case on de minimis use, Ringgold v. Black Entertainment Television, Inc., is typically the centerpiece of the discussion and includes the following elements:

  1. “the amount of the copyrighted work that is copied”;
  2. “the observability of the copied work—the length of time the copied work is observable in the allegedly infringing work”; and
  3. factors such as “focus, lighting, camera angles, and prominence.”26

But while the Ringgold test is commonly seen as the cornerstone of the de minimis use analysis, its application will largely depend on the type of work that is copied and the type of work that allegedly infringes (and not necessarily the circuit in which the case is pending). For instance, in cases dealing with the use of copyrighted works as “set dressing” in television and movies, the bulk of the analysis focuses on the depiction of the copyrighted works within the infringing work (i.e., the second and third elements), whereas in cases involving music sampling and the use of screenshots of audiovisual works, the focus tends to linger on the amount of the copyrighted work that has been used (i.e., the first element).

Analyzing a sampling of some of the well-known cases and recent decisions in these factual scenarios clarifies how the de minimis use defense applies in practice in modern forms of media. Much like fair use and other fact-intensive defenses to copyright infringement, the outcome of the de minimis use analysis will hinge on the specific circumstances of the use in each case.

Cases Focusing on the Infringing Work: Set Dressing

When the alleged infringement involves the use of a copyrighted static image appearing in a larger audiovisual work, the Ringgold quantitative/qualitative analysis zooms in on the depiction of the copyrighted work in the context of the allegedly infringing work. Ringgold itself dealt with the depiction of a painting as “set dressing” in a television show,27 setting the stage for the de minimis analysis in this context. The plaintiff in Ringgold was an artist who had licensed out nonexclusive reproduction rights to a museum to print her artwork entitled “Church Picnic”—depicting African American churchgoers at a picnic—on posters, but HBO used one of the posters as set design in an episode of the popular 1990s sitcom Roc without a license.28 The court held that the use was not de minimis because the poster was shown nine times for an aggregate of 26.75 seconds (1.86 to 4.6 seconds at a time over the course of a five-minute scene); the poster was often central and shown clearly enough for an average lay observer to notice it and discern its contents; and the production staff had placed the poster in a scene that took place in an African American church, so the artist’s work had a “qualitative connection” to the scene in which it appeared.29

Contrast the Second Circuit’s decision in Sandoval v. New Line Cinema Corp., where the court of appeals affirmed a finding of de minimis use when several of the plaintiff’s photographs appeared, out of focus and partially obstructed, for 35.6 seconds in the background of a scene in the movie Seven.30 The court determined that the photos were “not displayed with sufficient detail for the average lay observer to identify even the subject matter of the photographs, much less the style used in creating them.”31

Recent cases dealing with graffiti and public murals—for example, LMNOPI v. XYZ Films, LLC32 and Gayle v. Home Box Office, Inc.33—fall in line with Sandoval. In the former case, the plaintiffs’ murals appeared for 3.5 seconds in a film released by the defendants.34 The court held that the use was de minimis because the mural was in the background and obstructed by a pickup truck and an actress, and because several other murals appeared in the film.35 Moreover, the focus of the scene in which the mural appeared was on the actress rather than the mural, the mural was irrelevant to the film’s plot, and the overall scene depicting the mural was brief compared to the 93-minute-long film.36

Similarly, in the latter case, the plaintiff’s graffiti art appeared on a dumpster that was depicted briefly in the background of an episode of HBO’s television series Vinyl.37 The court held that the use was de minimis because the graffiti appeared for no more than two seconds, the focus was on the actress walking by the dumpster, the graffiti played no role in the plot of the episode, and the graffiti was never fully visible or in focus.38

The Ringgold analysis has even been applied in the context of video games. In Solid Oak, Judge Swain held that all three Ringgold factors weighed in favor of de minimis use and that “no reasonable trier of fact could find the Tattoos as they appear in NBA 2K to be substantially similar to the Tattoo designs licensed to Solid Oak.”39 There was no dispute in Solid Oak that the five tattoos at issue were copied in their entireties, but this did not matter, as the quantitative analysis focused not on the copyrighted works but on the video game as a whole. The court described in detail the many graphical, visual, auditory, and dramatic elements of the games, to put the overall prominence of the tattoos into relief. The five tattoos on the three famous players comprised between 0.000286 percent and 0.000431 percent of the total game data; they were never depicted separately from the three players (out of over 400 total player avatars); they appeared between 4.4 percent and 10.96 percent of their actual size; and they were only visible when a user selected a particular player and, even then, were not fully visible during gameplay.40 The court characterized the tattoos as nothing more than “visual noise” and found that even in the rare event the tattoos were displayed, such display was “small and indistinct” and “cannot be identified or observed.”41

Cases Focusing on the Copyrighted Work: Screenshots and Sampling

In cases involving screenshots of audiovisual works or the “sampling” of musical works, courts shift their focus from the significance of the copyrighted work as compared to the infringing work to the significance of the portion of the copyrighted work itself. In screenshot cases, courts look to the length of the underlying copyrighted video and how significant (or insignificant) the screenshot is. In music sampling disputes, the analysis typically revolves around the duration of the composition or sound recording copied as a proportion of the total original song.

De minimis use, as applied in the context of screenshots of copyrighted videos, is best explained by two recent decisions from the Southern District of New York. In Kanongataa v. Coed Media Group, LLC,42 the plaintiff filmed his wife giving birth and—he claims inadvertently—live-streamed the intimate life event on Facebook. When various media outlets reported on the newsworthy yet laughable scenario, using short clips or screenshots from the video feed, Kanongataa sued the media companies for copyright infringement. Coed Media, which ran a pop culture blog, used a single-frame screenshot from the 45-minute video to illustrate a story about the video itself that ridiculed the plaintiff. Coed Media moved to dismiss the case on grounds of fair use and de minimis use, and the court granted the motion on both grounds.43

In connection with the de minimis aspect of the use, the court agreed with Coed Media that its use of a screenshot was so small in comparison to the copyrighted birth video as a whole that it could not be considered infringing. Specifically, Coed Media explained that a single video frame is tantamount to approximately 1/30 of a second, and out of its 45-minute total length, the screenshot constituted .001235 percent of the video. Judge Kaplan, quoting de minimis non curat lex, found that as a matter of law, the two works could not be considered substantially similar.

The decision in Rudkowski v. Mic Network, Inc.,44 which came down shortly after Kanongataa, followed suit, relying on Judge Kaplan’s ruling. In that case, another photographer sued media outlets, including defendant Mic Network, for using a still image of the plaintiff’s video depicting riots in Berkeley, California, between Antifa and pro-free-speech protestors in articles about the riots. While, qualitatively, Judge Batts noted that the freeze-frame was “an exact screenshot of Plaintiff’s video,” she held that, quantitatively, Mic Network’s use of the video was “trivial” and that an “individual frame clearly represents an extremely small fragment of the whole video.”45 Notably, Judge Batts rejected the plaintiff’s reliance on Ringgold in support of his argument that the court should consider the length of time that his work was observable and its prominence in the allegedly infringing article. She observed that while cases like Ringgold “provide legal guidance, they are factually inapposite” because “[u]nlike cases where defendants’ works are films that show a copyrighted work for a period of seconds on screen, Defendant’s allegedly infringing work is a still photograph, rather than a video.”46

In the music context, Fisher v. Dees47 represents a scenario where the defendant’s copying was held to be qualitatively and quantitatively substantial. There, the defendant had copied the central theme and lyrics of the plaintiff’s song (with only minor variation) in a way that was easily recognizable and had appropriated six out of 38 bars of the original song.48 While the defendant ultimately prevailed on fair use grounds because his work was deemed a parody, the Ninth Circuit rejected a de minimis use defense under these facts.49

Contrast this with the frequently cited precedent for de minimis use in music “sampling” disputes: Newton v. Diamond.50 This decision arose out of a lawsuit brought by a songwriter against the Beastie Boys, the latter of which had sampled a six-second, three-note sequence from the plaintiff’s song and had procured a sound recording license but not a musical composition license.51 Even though the Beastie Boys had copied the “entire composition” for the given musical segment, the court still found the sample to be quantitatively de minimis as compared to the plaintiff’s work as a whole—and no more qualitatively significant than any other portion of the song—and noted that the average audience would not have recognized the appropriation.52

The Newton court explained that sampling evokes a phenomenon called “fragmented literal similarity,” where a defendant copies a very limited “portion of the plaintiff’s work exactly or nearly exactly, without appropriating the work’s overall essence or structure.”53 Because the copying is exact, the focus in such cases is “whether the copying goes to trivial or substantial elements . . . in relation to the plaintiff’s work as a whole.”54 The court also referred to the old adage that “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.”55 The set dressing cases discussed above, however, seemed to do just that, but out of necessity given their unique factual structures, which goes to show how malleable the question of quantitative and qualitative similarity can be and how mercurial the analysis may act depending on the nature of the works in question. A blood relative of fair use, indeed.


While both implied license and de minimis use have been around for decades, these defenses are attracting more of the copyright limelight as technology and popular culture continue to evolve and copyright defendants turn to unique and nuanced defenses in order to mold the decades-old Copyright Act to the 21st century. Copyright scholars and counsel may see these defenses employed in more cases—whether involving tattoos, video games, mural art, or music sampling, or even emerging areas like virtual and augmented reality—to permit users to make reasonable use of copyrighted works without facing liability for infringement. As the body of case law on these defenses grows, it will be fascinating to see, for de minimis use in particular, if the defense follows the path of fair use, which has birthed a considerable amount of varying case law and a diversity of applications and scholarly commentary.


1. No. 16-CV-724-LTS-SDA, 2020 WL 1467394 (S.D.N.Y. Mar. 26, 2020).

2. No. 18-CV-5610-LDH-VMS, 2020 WL 1914888 (E.D.N.Y. Mar. 30, 2020).

3. 2 William F. Patry, Patry on Copyright § 5:131 (Mar. 2020 update).

4. Id.; see also Raymond J. Dowd, Copyright Litigation Handbook § 8:16 (2d ed. Nov. 2019 update).

5. 908 F.2d 555 (9th Cir. 1990). The Effects court did not expressly state the three-factor framework; rather, the Seventh Circuit interpreting the Effects decision in I.A.E., Inc. v. Shaver, 74 F.3d 768 (7th Cir. 1996), did. However, the Effects decision is often cited as the basis for the framework.

6. At this time, the implied license defense was already a common defense in patent law cases. See Orit Fischman Afori, Implied License: An Emerging New Standard in Copyright Law, 25 Santa Clara Computer & High Tech. L.J. 275, 279 (2009).

7. Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 956 (11th Cir. 2009); Nat’l Ass’n for Stock Car Auto Racing, Inc. v. Scharle, 184 F. App’x 270, 275 (3d Cir. 2006); Atkins v. Fischer, 331 F.3d 988, 992 (D.C. Cir. 2003); Nelson-Salabes, Inc. v. Morningside Dev., LLC, 284 F.3d 505, 515 (4th Cir. 2002); Johnson v. Jones, 149 F.3d 494, 500 (6th Cir. 1998); Lulirama Ltd., Inc. v. Axcess Broad. Servs., Inc., 128 F.3d 872, 879 (5th Cir. 1997); I.A.E., 74 F.3d at 776.

8. See, e.g., Muhammad-Ali v. Final Call, Inc., 832 F.3d 755, 762 (7th Cir. 2016).

9. Estate of Hevia v. Portrio Corp., 602 F.3d 34, 41 (1st Cir. 2010).

10. Id.

11. Id. Notably, the First Circuit recently considered whether an implied sublicense can be created by the conduct of the parties, answering in the affirmative and holding that “where a licensor grants to a licensee the unrestricted right to sublicense and permit others to use a copyrighted work, a sublicense may be implied by the conduct of the sublicensor and sublicensee.” Photographic Illustrators Corp. v. Orgill, Inc., 953 F.3d 56, 64 (1st Cir. 2020).

12. Asset Mktg. Sys., Inc. v. Gagnon, 542 F.3d 748, 756 (9th Cir. 2008).

13. Falcon Enters., Inc. v. Publishers Serv., Inc., 438 F. App’x 579, 581 (9th Cir. 2011).

14. See Lulirama Ltd., Inc. v. Axcess Broad. Servs., Inc., 128 F.3d 872, 879 (5th Cir. 1997).

15. Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 501 (5th Cir. 2012).

16. Id. at 500.

17. SmithKline Beecham Consumer Healthcare, L.P. v. Watson Pharm., Inc., 211 F.3d 21, 25 (2d Cir. 2000) (alterations in original).

18. See, e.g., Weinstein Co. v. Smokewood Entm’t Grp., LLC, 664 F. Supp. 2d 332, 344 (S.D.N.Y. 2009).

19. See, e.g., Jose Luis Pelaez, Inc. v. McGraw-Hill Glob. Educ. Holdings LLC, 399 F. Supp. 3d 120, 141 (S.D.N.Y. 2019).

20. No. 16-CV-724-LTS-SDA, 2020 WL 1467394, at *7 (S.D.N.Y. Mar. 26, 2020).

21. Id.

22. See, e.g., Escobedo v. THQ Inc., No. 2:12-cv-02470-JAT (D. Ariz. dismissed Dec. 11, 2013) (MMA fighter Carlos Condit’s lion tattoo); Whitmill v. Warner Bros. Entm’t, Inc., No. 4:11-cv-00752 (E.D. Mo. dismissed June 22, 2011) (Mike Tyson’s tribal-inspired face tattoo).

23. Sandoval v. New Line Cinema Corp., 147 F.3d 215, 217 (2d Cir. 1998) (quoting Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 74 (2d Cir. 1997)).

24. See, e.g., W. Publ’g Co. v. Edward Thompson Co., 169 F. 833, 861 (E.D.N.Y. 1909) (“Even where there is some copying, that fact is not conclusive of infringement. Some copying is permitted. In addition to copying, it must be shown that this has been done to an unfair extent.”).

25. Sandoval, 147 F.3d at 217.

26. 126 F.3d at 75.

27. 126 F.3d 70.

28. See id. at 72–73.

29. See id. at 76–77.

30. See 147 F.3d 215, 218 (2d Cir. 1998).

31. Id.; see also Gottlieb Dev. LLC v. Paramount Pictures Corp., 590 F. Supp. 2d 625 (S.D.N.Y. 2008) (holding that the depiction of the plaintiff’s pinball machine in the background of the movie What Women Want was de minimis because it appeared only a few times for a few seconds in a three-and-a-half-minute scene, was never in the foreground, played no role in the plot, and the average lay observer “would not be able to discern any distinctive elements of Gottlieb’s Designs” and at best “would not recognize the Designs as anything other than generic designs in a pinball machine”).

32. No. 18-CV-5610-LDH-VMS, 2020 WL 1914888, at *1, *2–5 (E.D.N.Y. Mar. 30, 2020).

33. No. 17-CV-5867, 2018 WL 2059657, at *1, *2–4 (S.D.N.Y. May 1, 2018).

34. LMNOPI, 2020 WL 1914888, at *3.

35. See id.

36. See id.

37. See Gayle, 2018 WL 2059657, at *3.

38. See id.

39. Solid Oak Sketches, LLC v. 2K Games, Inc., No. 16-CV-724-LTS-SDA, 2020 WL 1467394, at *6 (S.D.N.Y. Mar. 26, 2020).

40. See id. at *7, *9.

41. See id. at *4, *6–7.

42. No. 16-cv-7472 (LAK) (S.D.N.Y. 2017). One of the authors represented the defendant in this case.

43. The court did not issue a written opinion but rather ruled on the motion from the bench and stated its opinion on the record.

44. No. 17 CV 3647 (DAB), 2018 WL 1801307 (S.D.N.Y. Mar. 23, 2018).

45. Id. at *4.

46. Id.

47. 794 F.2d 432 (9th Cir. 1986).

48. See id. at 434 & n.2.

49. See id. at 440.

50. 388 F.3d 1189 (9th Cir. 2004).

51. See id. at 1190.

52. See id. at 1193; see also VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 879 (9th Cir. 2016) (holding that a “horn hit” of less than a second appearing half a dozen times in Madonna’s 1990 hit “Vogue” was de minimis in that “an average audience would [not] recognize an appropriation” from the plaintiff’s song in Madonna’s song, particularly because the sample contained only “one instrument group out of many” in the composition); TufAmerica, Inc. v. WB Music Corp., 67 F. Supp. 3d 590, 595 (S.D.N.Y. 2014) (holding that the defendant’s appropriation of one word out of a two-minute-and-35-second song was not quantitatively significant, and to hold otherwise would be to “read the quantitative significance element out of the substantial similarity test”).

53. See Newton, 388 F.3d at 1195.

54. Id. (citing cases).

55. Id. (quoting Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir. 1936)).

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Scott J. Sholder is a partner with Cowan, DeBaets, Abrahams & Sheppard LLP and cochair of the firm’s litigation practice group. His practice focuses on litigation, counseling, and dispute resolution in connection with entertainment, media, and intellectual property matters.

Sara Gates is an associate at Cowan, DeBaets, Abrahams & Sheppard LLP in the firm’s litigation practice group. She represents clients in copyright, trademark, and commercial litigation matters in both federal and state courts.