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“Church Picnic Story Quilt,” a silk screened quilt created by Faith Ringgold, is in the collection of the High Museum of Art in Atlanta, Georgia. The High Museum has a license to sell poster reproductions of the work. In the early 1990’s, HBO produced an episode of the sitcom, “ROC,” in which the poster of the “Church Picnic Story Quilt” was used as a set decoration. Throughout a scene of the television show, the poster was visible nine times for a total of 26.75 seconds. The poster used in the television show did not include the identifying information that is printed on all the posters of “Church Picnic Story Quilt.” The television show was later reaired on the Black Entertainment Television network where Ringgold saw it in 1995.
De Minimis
HBO and BET claim that their use of the poster as a set decoration was de minimis. The court ruled the use of the poster in the television episode was not de minimis because it is clearly recognizable as Ringgold’s work and could be seen in its entirety over the 26.75 seconds of air time.
Fair Use
The court ruled that HBO and BET’s claim to fair use was invalid because:
Purpose and Character of Use: HBO and BET’s use the copyrighted work for decorative purposes, the same purpose for which Ringgold created the work. Further, HBO and BET’s use of the work is not transformative; they add nothing new to the original.
Amount and Substantiality of the Copyrighted Work Used: Even though the poster was only visible for a brief period of time, over the 26.75 seconds the whole work could be seen.
Effect of the Use on the Potential Market: There is a market to license the poster for use on television sets. In the past, Ringgold has refused to license the poster for use on a television show because of price and accreditation disputes. Ringgold does not have to demonstrate a negative effect on her ability to license the poster. She only has to show that there is a market to license the poster for use as a set decoration.
The Second Circuit Court of Appeals ruled in favor of Ringgold reversing the lower court’s granting of summary judgment for HBO and BET.
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