TV ad's incidental use of copyright work did not infringe

Nextel Communications' advert featured a man in a dentist's chair. Stephen Gordon sued the company because his copyrighted artwork appeared in the background.

Specifically, enlarged versions of two of his works appeared without permission: 'Bridge,' a work that Gordon said was visible in the advert for 10.6 seconds, and 'Root Canal,' visible, he said, for 7.3 seconds.

The duration of visibility is relevant: in the US, the Librarian of Congress regulates the payment of royalties by public broadcasting entities for use of published pictorial and visual works.

By these regulations, a "full-screen or substantially full screen display for more than three seconds" attracts a higher royalty rate than a "background or montage" display which appears for three seconds or less. Lesser usage is deemed insignificant, or de minimis.

Nextel argued that the Bridge illustration was never in focus and appeared only briefly in the background. It added that the illustration component of Root Canal was visible for less than a second. Instead, the viewers' attention was drawn to the words "root canal," which are not copyrightable.

A lower court agreed with Nextel, deeming the use de minimis. The appeals court concurred: this was not a case of actionable copying.

In the UK, copyright law would likely take a different approach to achieve the same result: the Copyright Designs and Patents Act of 1988 states that copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film, broadcast or cable programme.