## Facts

- Faith Ringgold created and owned the copyright to *Church Picnic Story Quilt*, a highly creative mixed-media artwork.
- A museum owned the original and held a nonexclusive license to reproduce the artwork as a poster; the poster was commercially sold and licensed, including for set decoration.
- HBO produced an episode of the television series *Roc* that used the *Church Picnic* poster as set decoration during a church scene; BET later rebroadcast the episode.
- The poster appeared nine times for a total of about 26.75 seconds; it was sometimes partially visible or out of focus but remained recognizable.
- Ringgold did not authorize HBO or BET to use the poster in the program and sued for copyright infringement.
- The district court granted summary judgment to defendants on a fair-use theory, and Ringgold appealed.

## Issues

1. Whether the poster’s inclusion in the episode was so trivial that it was nonactionable as a de minimis use.
2. Whether the use was fair use under 17 U.S.C. § 107, considering purpose/character, nature of the work, amount/substantiality, and market effect.

## Decision

- The Second Circuit reversed the summary judgment for defendants and remanded for further proceedings.
- The court held the copying was not de minimis as a matter of law because an average lay observer could recognize the protected work from the episode’s repeated displays.
- The court held defendants were not entitled to summary judgment on fair use; the district court misapplied the statutory factors, especially market harm.

## Legal Principles

- De minimis copying in audiovisual works turns on whether the appropriation is recognizable to an average lay observer, not solely on duration, partial visibility, or lack of sharp focus.
- Factor one (purpose and character) disfavors fair use when the secondary use is non-transformative and exploits the work for the same functional purpose for which it is licensed (here, decorative display).
- Factor two disfavors fair use when the copyrighted work is highly creative and expressive rather than factual.
- Factor three considers qualitative substantiality; taking enough of a work’s protected expression to make it recognizable can weigh against fair use even if the work is shown briefly or partially.
- Factor four focuses on harm to traditional, reasonable, or likely-to-be-developed markets, including licensing markets; a plaintiff need not prove actual lost sales to show cognizable market harm where an established licensing market exists.

## Conclusion

The Second Circuit reinstated Ringgold’s infringement claim by ruling that repeated, recognizable on-screen display of a copyrighted poster could not be dismissed as de minimis and that fair use could not be resolved for defendants on summary judgment, particularly given the risk to an existing market for licensing artwork as set decoration.


Ringgold v. Black Ent. Television, Inc., 126 F.3d 70 (2d Cir. 1997)