This week, we take a look at Ninth Circuit decisions explaining the scope of the de minimis use defense in copyright infringement actions and clarifying the Americans with Disabilities Act’s requirements for spectator seating.
BELL v. WILMOTT STORAGE SERVICES, LLC
The Court holds that the “de minimis” use defense to copyright infringement applies only where the defendant’s copying of the protected work is insubstantial, and not where that copying is total but inadvertent or inconsequential.
The panel: Judges Wardlaw, Clifton, and Choe-Groves (Int. Trade), with Judge Wardlaw writing for the majority and both Judges Clifton and Choe-Groves authoring concurrences.
Key highlight: “Though we have frequently characterized the de minimis principle in copyright as one centered around the defendant’s ‘use’ of the protected work [citations], ‘use’ in this context does not refer to how extensively a defendant uses an indisputably infringing work, as Wilmott and the district court below interpret the term. Rather, by ‘use,’ we have consistently referred to the quality or quantity of the protected work that was ‘used‘ by the defendant to make the allegedly infringing copy in determining whether the two works were substantially similar.”
Background: Plaintiff Richard Bell took a photograph of the Indianapolis skyline then published it online. This particular suit (one of 200 similar infringement suits Bell has filed) concerned defendant Wilmott Storage, which had Bell’s photo on the server database for the website VisitUSA.com. Ordinary visitors to the website would not have seen the photo. But they might (as Bell had) locate it either by conducting a reverse image search or if they already knew the photo’s specific pinpoint address.
After Bell sued Wilmott for infringement, Wilmott removed the photo. The district court then granted summary judgment to Wilmott, holding that it was entitled to the affirmative defense of de minimis use.
Result: The Ninth Circuit reversed. First, the Court agreed with Bell that Wilmott had “‘violated his exclusive right to publicly display the Indianapolis photo by displaying the photo on its server.” This was true, the Court held, even if few if any members of the public would have been likely to see Wilmott’s display of the photo; it was enough that Wilmott’s “server transmitted the Indianapolis photo to any member of the public who used the pinpoint address or a reverse image search.” The Court explained that “[t]he Copyright Act does not require proof that the protected work was actually viewed by anyone,” but defines “‘publicly’ to merely require that the display be at ‘a place open to the public.’” 17 U.S.C. § 101.
Next, the Court concluded that this copying was necessarily “substantial” and not “de minimis” because “the infringing work was an identical copy of the copyrighted Indianapolis photo.” The Court explained: “Our circuit and the majority of our sister circuits do not view the de minimis doctrine as a defense to infringement, but rather as an answer to the question of whether the infringing work and the copyrighted work are substantially similar so as to make the copying actionable.” Thus, the “de minimis” defense applies only where the copying is “‘so meager and fragmentary that the average audience member would not recognize the appropriation’”—which was not the case here.
The Court then addressed—and rejected—the district court’s conclusion that the de minimis (or “technical violation”) defense applied because Wilmott’s use of the photo was unintentional and inadvertent. As the Court reasoned, the Copyright Act carefully details parties’ rights and the exceptions to those rights, and in doing so the statute “modifies or completely precludes the application of [equitable] doctrines” that might otherwise limit liability. But, the Court explained, “nowhere in the Act’s numerous and detailed provisions is there any exception for the de minimis use of a concededly infringing work, i.e., for a ‘technical violation.’” And while Wilmott may not have had bad intent (or even been aware of the infringement), the Court held that its conduct satisfied the requirement that it be “volitional” because Wilmott had assumed responsibility for the server that displayed Bell’s photo.
Judge Clifton, joined by Judge Wardlaw, concurred to “discourage further pursuit of th[ese] claims.” Noting that Bell was quickly “solidifying his identification as a ‘copyright troll,’” and emphasizing newly raised questions regarding whether Bell had a valid copyright in the photo, Judge Clifton observed that “the long-range potential of his claim does not appear bright.”
Judge Choe-Groves, similarly, wrote that she “would remand for the district court to first consider the threshold question of whether Bell owns the copyright in the Indianapolis photo,” and that district court could potentially grant judgment on that ground.
LANDIS v. WASHINGTON STATE MLB STADIUM PUBLIC FACILITIES DISTRICT
The Court holds that courts analyzing Americans with Disabilities Act (ADA) claims over accessible seating in sports stadiums should examine sightline obstructions from both spectators in the row immediately in front of wheelchair areas and spectators two rows in front.
Panel: Judges McKeown, Forrest, and Bumatay, with Judge Forrest writing the opinion and Judge Bumatay concurring.
Key highlight: “Because we are not satisfied that the district court analyzed the second Accessible Stadiums requirement, we vacate its decision concluding that the Stadium satisfies the ADA by providing comparable sightlines to spectators using wheelchairs, and we remand for further proceedings so that a complete analysis of the Accessible Stadiums requirements can be performed.”
Background: Disabled baseball fans who use wheelchairs sued the owner-operators of the Seattle Mariners’ stadium, alleging the stadium fails to comply with various requirements of the ADA and state law. At trial, the district court rejected plaintiffs’ claim that spectators using wheelchairs had inadequate sightlines over standing spectators. Applying technical guidance issued by the Justice Department, the court concluded that the stadium’s sightlines met the requirements laid out in DOJ’s “Accessible Stadiums” guidelines because they were largely unobstructed by standing spectators.
Result: The Ninth Circuit vacated and remanded for further proceedings. First, the Court “assume[d] without deciding that the district court did not err in applying the Accessible Stadiums standard to this case.” Because “the parties apparently agree that” the relevant regulation “is genuinely ambiguous and that Accessible Stadiums is a reasonable interpretation of that guideline reflecting the DOJ’s authoritative, expert, and fair and considered judgment,” the Court saw no reason to “disturb the parties’ presentation of the issues.” But the Court nonetheless acknowledged that “that the validity of Accessible Stadiums may properly be raised in the future.”
Next, the Court concluded that the district court had misapplied the Accessible Stadiums guidelines. The guidance requires that a person using a wheelchair must be able to “see the playing surface between the heads and over the shoulders of the persons standing in the row immediately in front” and also “over the heads of the persons standing two rows in front.” But the district court had analyzed only the first of those requirements. Because “the district court may have erroneously concluded that [expert] diagrams addressed only the spectator one row in front of the wheelchair accessible seating,” the Ninth Circuit vacated and remanded for a “complete analysis.”
Judge Bumatay concurred, writing that the “the district court erred in summarily deferring” to the Accessible Stadiums guidelines, and asking the district court “to follow the steps laid out in Kisor [v. Wilkie, 139 S. Ct. 2400 (2019)] before deferring to this guidance on the scope of a disability regulation.” In his view, there were several reasons to doubt that deference was warranted, including the fact that the relevant regulation was originally not thought to cover sightlines over standing spectators, and that DOJ had disclaimed any binding authority in the Accessible Stadiums guidance itself.