Bassett v. Jensen et al. (18-cv-10576).

Martha’s Vineyard homeowner and artist Leah Bassett sued a number of individuals and businesses in connection with an individual who was employed with one of the businesses filming pornographic videos at Bassett’s home, which he had leased for a multi-month period of time. As part of her claim, Bassett asserted copyright infringement based on a variety of her arts and crafts that had been used to decorate the home appearing in numerous videos and promotional still shots. Earlier this summer, Judge Saris dealt with the bulk of the parties’ respective summary judgment motions, dismissing some of the state law claims as lacking factual or legal basis and others on statute of limitations grounds. On the copyright claim, Judge Saris determined that the collections that Bassett registered met the low bar of originality for works titled as drawings, paintings, photographs, wall hangings, collages and pottery. She determined that stencils on tabletops qualified for copyright protection so long as they were designed by Bassett, but that slipcovers and pillows do not qualify, because the fabric were not designed by Bassett and the shapes were selected for their functional purposes, not aesthetic. Judge Saris decided that Defendants’ fair use defense does not apply. She rejected the argument that the use was “incidental,” noting that this exception would swallow copyright law, at least with regard to set decorations, and allow for wholesale appropriation for movies and television. She instead characterized the nature of the use as commercial, which weighs against fair use. She further found that at least some of the copyrighted works appeared in full in the films, weighing against fair use. While acknowledging that the effect on the potential market weighs in favor of fair use, in that Bassett had never intended to sell the works, Judge Saris determined that, balancing these factors, Defendants were not entitled to summary judgment of fair use. Judge Saris held off on ruling on the dueling motions regarding infringement. Defendants argued that the use of the works in the films was de minimis. Judge Saris adopted the framework set forth in Ringgold v. Black Entm’t Television, Inc., a Second Circuit case that dealt with visual works appearing in films, which identified the “observability of the copied work – the length of time the copied work is observable in the film and factors such as lighting, focus, camera angles, and prominence, in determining whether the use was de minimis and thus non-infringing. Judge Saris determined that the evidence presented by both sides lacked sufficient information to analyze the issue under the Ringgold analysis, and deferred a final determination on copyright infringement. She ordered Bassett to provide an analysis describing which works appear in which films, how long the works appear, and the level of detail that the works appear, along with representative screenshots.

Bassett made the required filing, and Judge Saris has now granted summary judgment of infringement to Bassett. The supplementary filing showed that at least one work was clearly visible for at least 30 seconds (either continuously or in aggregate), and often for several full minutes, in each of the ten accused films. A jury trial on copyright damages and on the remaining state law claims is scheduled for February 2021. With luck, the Covid crisis will have subsided and this schedule will be met.