Copyright Infringement Defense Tip – De Minimis Doctrine

On November 12, 2014, in Copyrights, by Brian A. Hall

Copyright infringement attorneys would be well-served to review a recent case out of the United States District Court for the Middle District of Louisiana.  The case involved one test preparation company suing another for copyright infringement.  The allegations stemmed from the Defendant using 14 exam questions that were identical to those in Plaintiff’s registered copyright for 1,083 multiple-choice questions.  Rather than determine whether the questions themselves were subject to copyright protection, the Court relied on the the de minimis doctrine.  The Defendant asserted that any infringement was de minimis, and thus, “cannot lead to a finding of substantial similarity.”  “This means that even where the fact of copying is conceded, no legal consequences will follow from that fact unless the copying is substantial.”  “To establish that an infringement is quantitatively de minimis and therefore not actionable, the alleged infringer must demonstrate that the copying of the protected material is so trivial ‘as to fall below the quantitative threshold of substantial similarity.’”  (Citations omitted).

The Court went on to analyze the doctrine’s applicability and hold that there was no actionable copyright infringement.

“Based on the uncontroverted evidence, there are approximately 1,083 multiple-choice questions in the plaintiff’s copyrighted materials. (Doc. 31–2, p. 1). Accordingly, even assuming 14 questions were copied from the overall work, that would be approximately 1.3% of the total questions in the copyrighted material.2 This is even smaller than the 2% copying at issue in the Newton case, which the Ninth Circuit found was not quantitatively significant. Additionally, there is no indication, allegation, or argument that the 14 questions were any more significant than the 1,069 other questions in the copyrighted materials. These were not summary questions or “wrap up” questions, but rather, each question allegedly copied was merely another question in the overall mass of 1,083 copyrighted questions. There is no evidence even suggesting that these questions were essential to the overall work. Rather, all of the evidence indicates that these questions were merely an insignificant few in the overall mass. Furthermore, the evidence shows that these questions were not unique, but rather, appear to be standard questions and concepts in the contractor testing and test-preparation business. (See Doc. 25–9; doc. 30–4, p. 3–7). Accordingly, the Court finds that the relevant questions are a “simple, minimal, and insignificant” portion of the entire copyrighted material. Newton, 388 F.3d at 1196. Accordingly, looking at the evidence in the light most favorable to the plaintiff, this Court finds that there are no genuine issues of material fact, and judgment must be awarded in favor of the defendant as a matter of law. Based on this Court’s review, any alleged copying in this case cannot be deemed anything more than de minimis, and thus, not actionable copying.”

This practice tip serves as a reminder to analyze whether the amount of copying is sufficient enough to qualify for copyright infringement.  More importantly, defendants, and their copyright infringement attorneys, should be sure to understand the scope of the claimed infringement and consider a de minimis defense.

Louisiana Contractors Licensing Serv., Inc. v. Am. Contractors Exam Servs., Inc., No. CIV.A. 12-560-JJB, 2014 WL 1364815 (M.D. La. Apr. 7, 2014).


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