In copyright law, “de minimis” refers to a use of copyrighted material that is so small, brief, or incidental that it does not rise to the level of actionable infringement. While similar to Fair Use, de minimis is often treated as a separate defense by courts.
What Counts as “De Minimis”?
There is no perfect number of seconds that makes a clip de minimis. Instead, courts look at whether an average audience member would even recognize the copyrighted work. Common examples include:
- A famous painting hanging on a wall in the background of a vlog for a few seconds while the creator is speaking.
- A car driving by with the radio on, where a copyrighted song is audible for only a split second.
- A tiny, blurry thumbnail of a poster appearing in a wide-angle shot of a room.
De Minimis vs. Fair Use
While they often overlap, they focus on different things:
- Fair Use looks at the purpose of your work (like criticism or commentary).
- De Minimis looks at the amount of visibility of the work (whether it is too small to matter).
Do note that just because a clip is short does not mean it is de minimis, as the exception is not safe harbor like fair use. If you use the “heart” of a song or a very recognizable 5-second catchphrase, a copyright owner may still claim it.
How This Affects Content ID
YouTube’s Content ID system is highly sensitive. Even if a use is legally de minimis, the automated system might still identify it and apply a claim. In these cases, creators may need to use the dispute process to explain why the use is incidental.
Important Things to Know
- Because works vary in size, there’s no “five-second rule” or any specific duration that guarantees protection.
- Crediting the owner of the content does not turn an infringement into de minimis, and neither does it mean you have formal permission to use the content.
- Using de minimis for music is very difficult. Courts are often much stricter with music sampling than they are with visual backgrounds.
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