Commons:De minimis
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De minimis is a Latin expression meaning about minimal things, normally in the locution de minimis non curat lex ("The law does not concern itself with trifles"). De minimis use of a copyrighted work is such a trivial use that the consent of the copyright owner is not required.
In some cases Commons files with copyrighted content considered acceptable as de minimis may be identified with the template {{De minimis}}. (However, the vast majority of such files are not identified in this way.)
What is "de minimis"?
[edit]The Common Law concept known as de minimis is derived from the maxim de minimis non curat lex, often translated as "the law does not concern itself with trifles". Some technical breaches of the law are considered to be so trivial and inconsequential that a court may decide that they should not be treated as breaches at all. The concept applies to many branches of the law, but here we consider its application specifically to copyright law.
If proved in court, de minimis can be a complete defence to a copyright infringement action. It is not simply that an infringer can get away with some things without much chance of being sued due to the high cost of litigation; rather, that if the copying is de minimis the copier is not in fact breaking the law at all.
An example
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Assume we have a photograph with a copyright-protected poster in the background. There are two copyrights involved: that of the photographer and that of the poster-designer, and both may subsist independently. In taking the photograph and uploading it to Commons, the photographer will of course be making a copy of the poster design, and without consent that will generally be an infringement and hence not allowed. The fact that the photographer has created a new copyright of their own does not prevent the poster copyright from being infringed, and that is so even if the photograph displays a high level of originality itself.
However, if the poster is entirely incidental to the overall subject-matter of the photograph, the copying may be considered de minimis (perhaps the poster takes up a small, insignificant part of the image, is entirely out of focus compared with the main subject, or is largely hidden in the background). In other words, a court would not be quick to uphold a claim of copyright infringement just because a photographer happened to include accidentally and incidentally a copyright-protected poster.
In determining whether the copying was sufficiently trivial, the court will consider all the circumstances. So, for example, if the poster forms an essential part of the overall photographic composition, or if the photograph was taken deliberately to include the poster, there is likely to be copyright infringement, and it is no defence to say that the poster was 'just in the background'. If the existence of the poster was the reason the photograph was taken in the first place, copyright infringement cannot be avoided by additionally including within the frame more of the setting or the surrounding area.
If the existence of the poster makes the image more attractive, more usable, or liable to cause more than insignificant economic damage to the copyright owner, then a de minimis defence to a copyright-infringement action will probably fail.
It may be relevant how the image is described or classified: it will be difficult to argue de minimis if the photograph is described as illustrating "an advertising poster" and is placed within the category Advertising posters.
A useful test may be to ask whether the photograph would be as good or as useful if the poster were to be masked out. If no, then it is difficult to argue that the poster is actually de minimis, even if the poster is small and is "in the background".
Guidelines
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Variations in laws and in uses of works mean that firm rules are not possible. As a general guideline, however, a file containing copyrighted work X is less likely to satisfy de minimis the more of these it meets:
- the file is in use to illustrate X
- the file is categorised in relation to X
- X is referenced in the filename
- X is referenced in the description
- X cannot be removed from the file without making the file useless
- from other contextual clues (e.g., by comparison with a series of uploads by the same uploader) X is the reason for the creation of the file.
Note: de minimis consideration applies to a specific image composition. Significant cropping to focus on the copyrighted work can very easily turn a "probably OK" into a "probably not OK".
| # | Case can be considered de minimis | Description |
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| 1 |  OK Yes, definitely
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Copyrighted work X is visible but not identifiable.
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| 2 | OK Very likely
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Copyrighted work X is identifiable but is an unwanted intrusion to the subject which unfortunately cannot easily be removed.
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| 3 | OK Very likely
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Copyrighted work X is identifiable but is a small part of a larger work, so that the larger work cannot easily be shown without showing X. X is a part of the larger work, and its inclusion is unavoidable.
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| 4 | OK Very likely
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Copyrighted work X is identifiable and an unavoidable part of the subject but is not essential to the subject (removing it would not make the file useless).
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| 5 |  Maybe
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Copyrighted work X is identifiable and an unavoidable part of the subject, and is essential to the subject (e.g. removing it would make the file useless) but the work is shown in insufficient detail and/or with insufficient clarity, so de minimis may apply. |
| 6 |  Very unlikely
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Copyrighted work X is a key part of the subject (e.g. it is the reason for taking the photo). Removing it would make the derivative work radically different, but potentially still useful.
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| 7 | Definitely not
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Copyrighted work X is the central part of the subject (e.g. it is the reason for taking the photo). Removing it would make the derivative work useless.
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COM:DM United States
Commons:Copyright rules by territory/United States/en
Country-specific laws
[edit]COM:DM Belgium
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Morocco
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Peru
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Saint Kitts and Nevis
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Slovenia
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South Korea
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Sweden
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United Kingdom
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Crops of de minimis images
[edit]Since an image which is allowable under the de minimis principle must of necessity include some copyright material, it follows that such images cannot be cropped at will. For the case of a photograph which includes a poster, even if the photographer has a defence against infringement on the de minimis principle, that does not negate the original poster-designer's copyright. If someone takes the photograph and crops it so that only the poster remains, the de minimis defence is no longer available, as the poster design then becomes an essential part of the crop. So, the cropped version infringes and cannot be allowed on Commons.
Note that the mere fact that an image allowable under de minimis may be cropped to create one which is not allowable does not imply that the original work is not de minimis after all. Even very high resolution images, in which incidental details can be reliably recovered and magnified, should be viewed as a whole from a normal viewing distance when considering whether de minimis applies.
Examples
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Burj Khalifa (UAE allows freedom of panorama only when used in broadcast programs.) (DR) -
Maybe a series of photographs exhibited in a museum → de minimis (DR) -
Artwork by Escher in the center (DR) -
North gate of the Expo 2005 Aichi Japan with copyrighted works on its wall -
The artwork of a flying fish covering the aircraft is considered incidental (DR) -
See also
[edit]- Commons:Threshold of originality
- Commons:Freedom of panorama
- A discussion about de minimis in videos
- Cromer, Julie, Harry Potter and the Three-Second Crime: Are We Vanishing the De Minimis Defense from Copyright Law?
Notes
[edit]Some citation text may not have been transcluded
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