## Facts

- Gottlieb Development LLC distributed the “Silver Slugger” pinball machine and owned copyrights in three visual elements: a baseball-diamond design on the backglass, a baseball-diamond design on the playfield, and the playfield parts layout.
- Gottlieb also owned the “GOTTLIEB” trademark, used in interstate commerce since 1985 and displayed on the machine.
- Paramount Pictures Corporation produced and distributed the film *What Women Want* (2000).
- In a single brainstorming-scene occurring roughly 37 minutes into the film, the Silver Slugger machine appears intermittently for seconds at a time over a roughly three-and-a-half-minute segment.
- The machine is always in the background, partially obscured, never shown alone or in close-up, never mentioned by any character, and not connected to the plot.
- Gottlieb sued for copyright infringement, trademark infringement, and related state-law claims (including unfair competition and deceptive trade practices).
- Paramount moved to dismiss under Rule 12(b)(6), relying in part on the film itself, and argued the use was de minimis and nonactionable.

## Issues

1. Whether the film’s brief, background depiction of the pinball machine’s protected visual designs constituted actionable copyright infringement or was de minimis copying.
2. Whether the brief, background appearance of the “GOTTLIEB” mark plausibly alleged a likelihood of consumer confusion sufficient for trademark infringement and related unfair-competition claims.
3. Whether the state-law claims were preempted by federal copyright law or otherwise failed for lack of confusion or misrepresentation.

## Decision

- The court granted Paramount’s Rule 12(b)(6) motion and dismissed the complaint with prejudice and costs (without attorneys’ fees).
- The court held the alleged copying of the copyrighted designs was de minimis and therefore not actionable.
- The court held the trademark display was too minimal and obscure to plausibly support a likelihood of confusion, defeating the Lanham Act claim and parallel state-law theories.
- The court held the remaining state-law claims were preempted to the extent they restated the copyright theory and otherwise failed for the same reasons as the trademark claim.

## Legal Principles

- Copying is not actionable if it is de minimis, meaning the use is so trivial that it falls below the quantitative and qualitative threshold required to show substantial similarity.
- For visual works in audiovisual media, de minimis analysis considers how much of the work is shown and how it is presented, including duration of observability and factors such as prominence, focus, lighting, and camera angles.
- A trademark infringement claim requires plausible allegations supporting a likelihood of consumer confusion; a fleeting, indistinct background display that is not highlighted or tied to the story generally will not suffice.
- State-law claims that merely recast a copyright infringement theory may be preempted; state-law unfair-competition theories also fail absent plausible confusion, misrepresentation, or exploitation of goodwill.

## Conclusion

The court dismissed all claims because the pinball machine’s appearance functioned as incidental set dressing—brief, obscured, and not emphasized—making the asserted copyright copying de minimis and the trademark use too indistinct to plausibly create consumer confusion.


Gottlieb Dev. LLC v. Paramount Pictures Corp., 590 F. Supp. 2d 625 (S.D.N.Y. 2008)