Commons:De minimis

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Direito autoral

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• Cheque
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• De minimis
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Esta fotografia é aceitável porque as imagens que aparecem nos ecrãs, cujos direitos de autor estão reservados, são de minimis.

De minimis é uma expressão latina que significa "sobre coisas mínimas", normalmente na locução de minimis non curat lex ("A lei não se preocupa com ninharias"). O uso "De minimis" de uma obra protegida por direitos de autor é de uso tão trivial que não é necessário o consentimento do proprietário dos direitos autorais.

Em alguns casos, arquivos Commons com conteúdo protegido por direitos autorais considerados aceitáveis como de minimis podem ser identificados com o modelo {{De minimis}}. No entanto, a grande maioria desses arquivos não é identificada dessa maneira.

Que significa "De minimis"?

O conceito do Common Law conhecido como de minimis é derivado da máxima de minimis non curat lex, muitas vezes traduzida como "a lei não se preocupa com ninharias". Algumas violações técnicas da lei são consideradas tão triviais e inconseqüentes que um tribunal pode decidir que elas não devem ser tratadas como violações. O conceito se aplica a muitos ramos da lei, mas aqui consideramos sua aplicação especificamente à lei de direitos autorais.

Se comprovado no tribunal, que o de minimis pode ser uma defesa completa a uma ação de infração dos direitos autorais. Não é simplesmente que um infrator possa escapar com algumas coisas sem muita possibilidade de ser processado devido ao alto preço do litígio; melhor isto se a cópia for de minimis o copiador não está violando a lei de fato em absoluto.

Exemplo

A copyright-protected movie poster in the background (promoting "The Dark Knight") as part of a street-scene.

Presuma que temos uma fotografia com um cartaz protegido por direitos autorais ao fundo. Há dois direitos autorais implicados: o do fotógrafo e aquele do desenhista do cartaz, e ambos podem existir independentemente. Ao tirar a fotografia e transferi-la ao Commons, o fotógrafo estará fazendo naturalmente uma cópia do desenho do cartaz, e sem consentimento que será geralmente uma infração e aqui não permitido. O fato que o fotógrafo criou um novo direito autoral próprio não impede os direitos autorais do cartaz de ser infringidos, e é assim mesmo se a fotografia expuser um alto nível da própria originalidade.

Contudo, se o cartaz é inteiramente acessório à matéria sujeita total da fotografia, a cópia pode ser considerada de minimis (possivelmente o cartaz toma uma parte pequena, insignificante da imagem, é inteiramente fora do foco comparado com o sujeito principal, ou é basicamente oculto ao fundo). Em outras palavras, um tribunal não seria rápido para sustentar uma reclamação de infração dos direitos autorais somente porque um fotógrafo resultou incluir acidentalmente e incidentemente um cartaz protegido por direitos autoral.

Ao determinar se a cópia foi suficientemente trivial, o tribunal considerará todas as circunstâncias. Deste modo, por exemplo, se o cartaz é uma parte essencial da composição fotográfica total, ou se a fotografia foi tomada deliberadamente para incluir o cartaz, provavelmente haverá infração de direitos autorais, e ele não é nenhuma defesa para dizer que o cartaz estava 'somente ao fundo'. Se a existência do cartaz foi a razão na qual a fotografia foi tirada desde o início, a infração dos direitos autorais não pode ser evitada por incluir adicionalmente dentro do foco da foto mais de uma colocação ou a área ao redor.

Se a existência do cartaz fizer a imagem mais atraente, mais usável, ou sujeito de causar mais do que um dano econômico insignificante ao proprietário dos direitos autorais, então uma defesa de minimis a uma ação de infração de direitos autorais falhará provavelmente.

Pode ser relevante como a imagem é descrita ou classificada: será difícil argumentar de minimis se a fotografia for descrita como ilustrando "um cartaz publicitário" e colocada dentro da categoria "cartazes publicitários".

Um teste útil pode ser perguntar se a fotografia manteria o seu valor caso o cartaz fosse removido. Se não, então é difícil argumentar que o cartaz é de fato de minimis, mesmo se o cartaz for pequeno e estiver "ao fundo".

Diretrizes

The 4 icons that indicate the type of game are de minimis in the picture

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
1	OK Yes, definitely	Copyrighted work X is visible but not identifiable. X is Milad Tower X is Lotte World Tower
2	OK Very likely	Copyrighted work X is identifiable but is an unwanted intrusion to the subject which unfortunately cannot easily be removed. X is the billboard in background at top right
3	OK Very likely	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. X is the Louvre Pyramid X is the Escher painting X is the team logo X is the trophy X is the fire-shaped sculpture on top X is the fourth floor
4	OK Very likely	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). X is the seat screens in an aircraft X is the two characters in the right center X are the automated voice announcements
5	Maybe	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. X is the banners hanging from ceiling (DR) X is the photographs hanging in museum (DR)
6	Very unlikely	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. Example: File:Carla del Ponte Mladic 1.jpg, showing en:Carla Del Ponte with a copyrighted photo of en:Ratko Mladić, was used to illustrate en:Ratko Mladić (this version). The cropped version, File:Carla del Ponte.jpg, excludes the copyrighted work, but is radically different (DR). Example: File:Mario Bros with Cube - Graffiti.JPG, with graffiti on an Ecuadorean sculpture showing a copyrighted game character (en:Mario), was used to illustrate de:Super Mario Bros. 3. Removal of the graffiti was possible, leaving the sculpture File:Quito sculpture - Avenida Brazil at corner with Avenida America.jpg (DR).
7	Definitely not	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. Example: File:Cover Austria 1938-650px.jpg was used in this version of en:Mixed franking. The stamps were just a small part of the area of the image, but central to its significance (DR). Example: File:Swmovies.jpg - Photo of a collection of Star Wars DVDs.

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COM:DM United States

Estados Unidos

The United States courts interpret the de minimis defense in three distinct ways:

1. Where a technical violation is so trivial that the law will not impose legal consequences;
2. Where the extent of copying falls below the threshold of substantial similarity (always a required element of actionable copying); and
3. In connection with fair use (not relevant here, since Commons does not allow fair use images).

It is the first of these that is often of particular concern on Commons.

As found in Ets-Hokin v. Skyy Spirits, Inc., a photograph of a bottle is not a derivative work of its label (though in this particular case, the label also happened to be below the threshold of originality):

“

We need not, however, decide whether the label is copyrightable because Ets-Hokin's product shots are based on the bottle as a whole, not on the label. The whole point of the shots was to capture the bottle in its entirety. The defendants have cited no case holding that a bottle of this nature may be copyrightable, and we are aware of none. Indeed, Skyy's position that photographs of everyday, functional, noncopyrightable objects are subject to analysis as derivative works would deprive both amateur and commercial photographers of their legitimate expectations of copyright protection. Because Ets-Hokin's product shots are shots of the bottle as a whole—a useful article not subject to copyright protection—and not shots merely, or even mainly, of its label, we hold that the bottle does not qualify as a "preexisting work " within the meaning of the Copyright Act. As such, the photos Ets-Hokin took of the bottle cannot be derivative works.

”

Country-specific laws

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COM:DM Belgium

Bélgica

Art. XI.190 of the Code on Economic Law states:

• Once a work has been lawfully published, its author may not prohibit: [...] 2°. reproduction and communication to the public of a work shown in a place accessible to the public where the aim of reproduction or communication to the public is not the work itself [...].

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COM:DM Canada

Canadá

Subsection 30.7 of the Canadian Copyright Act, 1985 states:

It is not an infringement of copyright to incidentally and not deliberately

(a) include a work or other subject-matter in another work or other subject-matter; or

(b) do any act in relation to a work or other subject-matter that is incidentally and not deliberately included in another work or other subject-matter.

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COM:DM Czech Republic

Chéquia

Under the Consolidated Version of Act No. 121/2000 Coll. as amended up to 216/2006,

• Copyright is not infringed by anybody who uses a work incidentally, in connection with an intended primary use of another work or element.^{[121/2000–2006 Art.38c]}

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COM:DM European Union

União Europeia

The Copyright Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society allows for de minimis exception in Art. 5(3)(i):

• Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: […] incidental inclusion of a work or other subject-matter in other material.

Under the generic conditions of Article 5(5):

• The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightsholder.

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COM:DM Finland

Finlândia

Under the Copyright Act 404/1961, with amendments up to 608/2015,

• Works of art made public may be reproduced in pictorial form in material connection with the text: 1) in a critical or scientific presentation; and 2) in a newspaper or a periodical when reporting on a current event, provided that the work has not been created in order to be reproduced in a newspaper or a periodical.^{[404/1961–2015 Sec.25(1)]}
• When a copy of a work of art has, with the consent of the author, been sold or otherwise permanently transferred, the work of art may be incorporated into a photograph, a film, or a television programme if the reproduction is of a subordinate nature in the photograph, film or programme.^{[404/1961–2015 Sec.25(2)]}

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COM:DM France

França

This photograph is not a copyright violation since it is of the entire plaza, and not just the Louvre Pyramid.

The white triangle in this derivative work covers the copyright protected region of the top image.

French case law admits an exception if the copyrighted artwork is "accessory compared to the main represented or handled subject" (CA Paris, 27 octobre 1992, Antenne 2 c/ société Spadem, « la représentation d'une œuvre située dans un lieu public n'est licite que lorsqu'elle est accessoire par rapport au sujet principal représenté ou traité »). Thus ruling #567 of March 15, 2005 of the Court of Cassation denied the right of producers of works of arts installed in a public plaza over photographs of the whole plaza:

• Because the Court has noticed that, as it was shown in the incriminated images, the works of Mr X... and Z... blended into the architectural ensemble of the Terreaux plaza, of which it was a mere element, the appeals court correctly deduced that this presentation of the litigious work was accessory to the topic depicted, which was the representation of the plaza, so that the image did not constitute a communication of the litigious work to the public.

French case law states that the said artwork must not be intentionally included as an element of the setting: its presence in the picture must be unavoidable (CA Versailles, 26 janvier 1998, Sté Movie box c/ Spadem et a.):

• It can be considered as an illicit representation of a statue by Maillol, the broadcasting of a commercial in which it appears, as it was not included in a film sequence shot in a natural setting—which would explain the brief and non-essential to the main subject, appearance of the sculpture, which is set in the Tuileries gardens, but used as an element of the setting.

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COM:DM Germany

Alemanha

Under § 57 of the 1965 Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte) (UrhG), "any reproduction, distribution, and communication in public of a work shall be admissible if the work is to be regarded as an immaterial supplement in comparison to the actual subject matter of the reproduction, distribution, or communication in public."

The first step in assessing whether a particular use of a work is covered by § 57 is to determine the actual (primary) subject matter reproduced, distributed, or communicated to the public. The primary subject matter does not itself need to be protected by copyright.To qualify under § 57, the work must not only "fade into the background" or be of "subordinate significance" relative to the primary subject matter; rather, it must not even attain marginal or minor significance.

According to the Federal Court of Justice, this is the case

1. if it could be omitted or replaced and the average observer would not notice it (or, in the alternative, the overall impression of the primary subject matter would not be at all affected); or
2. if, in light of the circumstances of the case, it bears not even the slightest contextual relationship (inhaltliche Beziehung) to the primary subject matter, but rather is without any significance to it whatsoever due to its randomness and arbitrariness.

The Federal Court of Justice also provided a (non-exhaustive) list of examples where it is "regularly impossible" that the use of a work qualifies as de minimis:

1. The work noticeably impacts the style or mood conveyed (erkennbar stil- oder stimmungsbildend);
2. the work underscores a particular effect or statement;
3. the work serves a dramaturgic purpose; or

1. the work is characteristic in any other way.

Note that whether the work can be replaced with another work is relevant only to the extent that if an average observer of the primary subject matter would not notice the work in question because it can be arbitrarily replaced or omitted, this supports a finding of immateriality (see above). However, as soon as it has been established that the work is part of the overall concept (say, because it impacts the mood of the picture), it no longer matters if the work could be replaced: Section 57 does not apply.

Examples of de minimis use from court cases:

There are very few court decisions discussing the German de minimis provision and the 2014 decision by the Federal Court of Justice, which set out the tests expounded above, was the first by Germany's highest court of civil jurisprudence that revolved around § 57. In the case at issue, the Court looked at a photograph in a furniture catalogue depicting several furniture items for sale and a painting on the wall in the background (pictured here, p 3). The Court held that the publisher could not rely on § 57 for its use of the painting after the lower court found that the painting added a "markedly contrasting colour accent". The Court deemed this sufficient to rule out an immaterial use pursuant to § 57. In another decision, the Federal Court of Justice held that the use of a picture of a Spanish city as part of a high-school student's essay on that city does not qualify as de minimis.

In light of the 2014 judgement, older decisions by lower courts will need to be viewed with some caution. That being said, the use of a photograph of an individual wearing a T-shirt with a protected design on the cover page of a magazine (pictured here) was held by the Munich Higher Regional Court in 2008 to fall within the definition of use as an immaterial supplement because the design did not bear any contextual relationship to the primary subject matter due to its randomness and arbitrariness.

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COM:DM Iceland

Islândia

An unofficial translation of Article 10a of the Icelandic copyright act reads:

• Authors’ exclusive rights under Article 3 (cf. Article 2), shall not apply to the making of reproductions (copies) that are transient or incidental...^{[73/1972-2018 Art.10a(1)]}

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COM:DM Ireland

República da Irlanda

Under the Copyright and Related Rights Act, 2000 (No. 28 of 2000),

• The copyright in a work is not infringed by its inclusion in an incidental manner in another work.^{[28/2000 Sec.52(1)]}
• A work shall not be regarded as included in an incidental manner in another work where it is included in a manner where the interests of the owner of the copyright are unreasonably prejudiced.^{[28/2000 Sec.52(3)]}

According to Pascal Kamina, the Irish legislation is similar to the legislation in the United Kingdom from 1988.

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COM:DM Israel

Israel

According to 2007 Copyright Act, section 22:

• An incidental use of a work by way of including it in a photographic work, in a cinematographic work or in a sound recording, as well as the use of a such work in which the work was thus incidentally contained, is permitted; In this matter the deliberate inclusion of a musical work, including its accompanying lyrics, or of a sound recording embodying such musical work, in another work, shall not be deemed to be an incidental use.^{[2007-2011 Sec.22]}

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COM:DM Japan

Japão

Copyright Act Article 30-2, amended in 2012, states:

• Article 30-2: When creating a copyrighted work of photography, sound recording or video recording, other copyrighted items that are incidental subjects of the work because they are hard to be separated from the item that is a subject of the work may be copied or translated along the work being created (only if they are minor components of the work being created). However, if, considering the kinds of the incidentally included works and the manner of the copying or translation, it unfairly is prejudicial to the interest of the copyright holders of the incidentally included works, they may not.

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COM:DM Netherlands

Países Baixos

The law of the Netherlands includes an article devoted to a situation where the copyright is not or barely relevant. This is called de minimus or bagatel. Based on this article, it is allowed to include work of other persons in an own work, but only if it is incidental or of minor significance. "Incidental" means that the presence of the copyrighted work is more or less by chance. Of minor significance means the copyrighted work is a small part of the work.

Translated text from Art.18 of the Auteurswet of the Netherlands:

The incidental processing of a copyrighted work as a part of minor significance in another work is not considered an infringement of the copyright of the first mentioned work.

Sources

• Auteurswet art. 18a
• Lexology.com
• Understanding intellectual property (In Dutch)

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COM:DM Morocco

Marrocos

"It shall be permitted, without the author’s authorization or payment of a fee, to republish, broadcast or communicate to the public by cable an image of a work of architecture, a work of fine art, a photographic work, or a work of applied art which is permanently located in a place open to the public, unless the image of the work is the main subject of such a reproduction, broadcast or communication and if it is used for commercial purposes".^{[1-05-192/2006 Art.20]}

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COM:DM Peru

Peru

There is subtle mention of "de minimis" in determinate cases:

• Media for private use, non-profit educative events or extracts of musical works in official events.^{[822/1996 Art.41(a, b and c)]} In other words, the sentence is equivalent to Fair use and is unacceptable to upload in Commons.
• Broadcasting of well-known quotations and current events in any media. "The exception provided [...] shall be interpreted restrictively, and may not be applied to cases that are contrary to proper practice".^{[822/1996 Art. 44-45, 50 and Decision 351 Art. 22]}
• Don't be an object of intelligent plagiarism ("plagio inteligente", also referred in Article 217c of the Penal Code, 2007):
  • Parodies: Allowed within the legal basis.^{[822/1996 Art. 49]} Resolution No. 0864-2007/TPI-INDECOPI (also No. 4372-2013/TPI-INDECOPI) pointed out that the work is a infringement if the design adopts similarities or derivations from another without the parody intention (ordinary or substantial plagiarism). Best example is the 2008 TV series Magnolia Merino, which complies with the concept of parody when deals with a subject of public interest from other artistic point of view with excerpts based on the scenario, impersonation and musicalization of Magaly TeVe (see Resolution No. 3251–2010/SC1-INDECOPI).
  • Incidental: In APSAV v. Arkinka S.A. (Anuario Andino 19 August 2004, based on Resolution No. 243-2001/ODA-INDECOPI) the limitation of the use of third parties works has been applied when "the appearance within the work should be incidental". Freedom of panorama is also mentioned and justified in both Decision 351 and DL 822 with the term "public places" such as "public museums".

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COM:DM Saint Kitts and Nevis

São Cristóvão e Neves

• Copyright in a work shall not be infringed (a) by its incidental inclusion in an artistic work, sound recording film, broadcast or cable programme; or (b) by the issue to the public of copies of the playing, showing, broadcasting or inclusion in a cable programme service of anything whose making was not an infringement of copyright by virtue of paragraph (a) of this section.^{[18.08/2000 Section 55]}

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COM:DM Singapore

Singapura

Under section 10(1) of the Copyright Act (Cap. 63, 2006 Rev. Ed.) of Singapore, unless a contrary intention appears:

• a reference to the doing of an act in relation to a work or other subject-matter shall be read as including a reference to the doing of that act in relation to a substantial part of the work or other subject-matter; and
• a reference to a reproduction, adaptation or copy of a work shall be read as including a reference to a reproduction, adaptation or copy of a substantial part of the work, as the case may be.

Therefore, acts done in relation to insubstantial parts of a work or other subject-matter do not breach copyright.

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COM:DM Slovenia

Eslovénia

Article 52 of the Copyright and Related Rights Act:

• "Such disclosed works that may be regarded as accessory works of secondary importance with regard to the actual purpose of some material object, may be used freely while exploiting such object."^{[2007 Art.52]}

Article 52 has been interpreted by the copyright expert Miha Trampuž in his book Copyright and Related Rights Act with Commentary. He has highlighted the following aspects: the work must have been disclosed, it must have been incidental with another object or work, it could be at will replaced with another work, and it is inessential in the copyright sense to the object or work.

See Commons:Deletion requests/File:Postcard of Ljubljana, Prešeren Square (3).jpg.

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COM:DM South Korea

Coreia do Sul

This photo is not copyright infringement because Lotte World Tower is not main object in this image, it's incidentally included.

Under the Copyright Act (as amended up to Act No. 16600 of November 26, 2019),

Article 35-3 (Incidental Inclusion, etc.),

A work seen or heard in the courses of photographing, voice recording, or video recording (hereinafter referred to as "shooting, etc." in this Article), where it is incidentally included in the main object of shooting, etc., may be reproduced, distributed, performed in public, displayed, or publicly transmited. That where it unreasonably prejudices the interest of the holder of author's economic right in light of the type and nature of the used work, the purpose and character of use, etc, the same shall not apply.

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COM:DM Sweden

Suécia

Article 20a of the copyright law as of 2017 says:

• It is allowed for a film or television program to include copies of works of art or public performances and transfer the artwork to the public, as long as the copy is of secondary importance with respect to the film or television program content. This may be done with artwork that appears in the background of, or otherwise forms an insignificant portion of an image.^{[729/1960-2017 §20a]}

These are  Incorrecto:

• Thumbnail-sized photos on a screenshot - copyvio of two of the thumbnail-sized photos (NJA 2010 p. 135[1])
• People on a scene with decorations in the background - copyvio of the background (NJA 1981 p. 313)

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COM:DM United Kingdom

Reino Unido

Section 31 of the UK Copyright, Designs and patents Act 1988, as subsequently amended in 2003, states that:

• Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film, or broadcast.

"Artistic work", as defined within the act, includes photographs.

Crops of de minimis images

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

• 
  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)
• 
  Lotte World Tower (South Korea allows freedom of panorama only noncommercial purposes.) (DR)

See also

• Commons:Threshold of originality
• Commons:Liberdade de 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

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