For the second time in as many years I have received an email containing an aggressive claim of an alleged copyright violation. It relates to the use by me of a photograph on my web site. The first accusation of copyright violation came from a woman whom I know. She had emailed the photograph to me. If I recall it was a snap of her (and possibly a companion) rowing on the river. I must have made the mistake of using the photo with my daily blog (and pointedly without having acknowledged whence it came). I accordingly removed the photo from my blog; and, I advised the woman. I haven’t heard from her again.

On this occasion, the alleged violation pertains to a photo included in my website over four years ago. The blog contained landscape photos of Canada about which I was writing. I have since removed the photo. I have not however responded to the email. I strongly believe something amiss about the alleged cause of action and the faulty process of communication from the purported claimant. In short it smells of a rat! The stench is both direct and indirect. At first blush it is a complicated matter.

The answer to this riddle – like the answer to so many things in life – is this: What is the question?  It behooves the rational mind first to determine the question before mistakenly attempting to resolve the answer.  This is a trick (though not a deceit) taught to me by a former senior colleague (now a judge) at law school. He emphasized the need to begin any point of view by properly stating the question. Naturally, to avoid deliberate obfuscation or similar silly rhetoric, the question must do more than state the obvious; namely, “What is the answer?” Or, “Is it right?” The question must tackle the issue.  Identification of the issue normally secures the mooring to a more avid rationality.

De minimis is a legal doctrine by which a court refuses to consider trifling matters. The name of the doctrine is a Latin expression meaning “pertaining to minimal things” or “with trifles”, normally in the terms de minimis non curat praetor (‘the praetor does not concern himself with trifles’) or de minimis non curat lex (‘the law does not concern itself with trifles’). Wikipedia

And more specifically…

Courts will occasionally not uphold a claim to copyright on modified public domain material if the changes are deemed to be de minimis. Similarly, courts have dismissed copyright infringement cases on the grounds that the alleged infringer’s use of the copyrighted work (such as sampling) was so insignificant as to be de minimis. For example, the NBA 2K video games that included copyrighted tattoos in the recreation of the players’ likenesses were found to be in de minimis and not copyright-violating. Idem

Even in moments of my grossest vanity I would never imagine that anything I have put on my web site comes close to qualifying as a public copyright infringement. To begin, my readership is between small and tiny. Second, I have never profited either directly or indirectly from anything I have posted on my web site. And, finally, even if there were a possible claim, the penalty of infringement is next to zero.

Accordingly – at this late stage of my education – it makes little if any sense to devote oneself needlessly to a review of liability where its point is progressively academic.