Graffiti in HBO Show Too Fleeting for Copyright, Trademark Suit

Graffiti in the background of a shot in the canceled Home Box Office Inc. series “Vinyl” was not noticeable enough to trigger copyright or trademark violations, according to a federal court.

The U.S. District Court for the Southern District of New York dismissed claims by street artist Itoffee R. Gayle that a scene in a March 2016 episode violated his intellectual property rights by including a shot of his work—the tag “art we all”—in the background.

The May 1 ruling is an application of the de minimis rule of copyright infringement, under which courts excuse such insubstantial uses of protected material.

Art Hard to See in Scene

The court said the view of Gayle’s artwork was fleeting and unnoticeable to an ordinary viewer, and couldn’t form the basis of a copyright or trademark infringement claim.

The claims “border on frivolous,” the court said.

“The graffiti is hard enough to notice when the video is paused at the critical moment,” the court said. “It is next to impossible to notice when viewing the episode in real time.”

Even if HBO deliberately put Gayle’s work in the shot, its appearance was too minor to support an infringement claim, the court said.

Having disposed of the federal claims, the court declined to exercise jurisdiction over the remaining state claims, and dismissed the entire case.

Judge Jesse M. Furman issued the court’s ruling.

Levine, Sullivan, Koch & Schulz LLP and Davis Wright Tremaine LLP represented HBO. Gayle represented himself. HBO is a division of Time Warner Inc.

The case is Gayle v. Home Box Office, Inc., 2018 BL 154554, S.D.N.Y., No. 17-5867, 5/1/18.