Photographer loses lawsuit over his photos in Billie Eilish documentary

screenshot from documentary
Screenshot from the documentary with photographs of Michael Kelly in the background.

A photographer has lost his lawsuit against Apple over images that appeared in the background of a documentary about singer Billie Eilish. The judge called the use “too trivial” to be considered infringing.

Photographer Michael Kelly sued Apple and production company Morning Bee for copyright infringement after 10 of his photographs were featured in a 2021 documentary. Billie Eilish: The world is a little blurry.

Kelly Airports The exhibition of photographs appeared against the backdrop of a performance by a Maori cultural group at New Zealand’s Auckland Airport, which Eilish witnessed in the documentary.

Kelly is known for his photographs of subjects such as aircraft and architecture. Some of his work was exhibited at Auckland Airport at the time.

Last month, however, a federal judge in New York dismissed Kelly’s copyright claim against Apple and the Morning Bee, saying the photos’ brief appearance in Eilish’s documentary was considered “de minimis,” or minimal.

In accordance with Law360U.S. District Judge Gregory H. Woods dismissed Kelly’s lawsuit, saying the photographer’s images appeared only in the background of a short scene.

Judge Woods also says the camera never focuses on any of Kelly’s photos and “they (the images) are no more highlighted than the artists or Eilish and her family” in the documentary.

“(The photographs) appear in a 140-minute film, with the total length of each photograph ranging from seven to 14 seconds.” Judge Woods writes in his ruling.

“What’s more, in these fleeting shots, the photographs are often obstructed, out of focus, low-lit, shown at an angle to the viewer, and always in the background—far from noticeable in the film.”

Judge Woods said the appearance of Kelly’s photographs in the documentary constituted fair use. BloombergLaw reports that the judge said a ban on such images would encourage other documentary makers in the future.

“Defendants’ transformative, fleeting and incidental use of plaintiffs’ photographs that appear in the background of a scene lasting less than one minute in a 140-minute documentary constitutes fair use.”

In March, PetaPixel reported a family who were watching Netflix for using images of their home, allegedly taken by a drone, in advertisements for a reality show.

Image credits: Header photo from court documents.

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