KWIKA attorney Nick Soltman was quoted by the Daily Journal in Ashley Cullins’ article on a copyright infringement case filed against Netflix by artist Earl Swanigan. The complaint alleges that a painting of Swanigan’s appeared in the background in an episode of a Netflix original TV series without the artist’s permission.
The issue likely comes down to two defenses: (1) whether Netflix is protected by the “fair use” doctrine, which permits certain narrowly defined uses of copyrighted works without the creator’s permission, and (2) the “de minimis” doctrine, which simply says the issue is too trivial to merit consideration.
The problem here is that there are only a few cases where artwork appears in the background of a studio film or television show. Most of them were deemed fair use, but Nick says he expects Netflix to take an aggressive approach in this case to protect its territory. “If [Swanigan] wants $250,000, you’re just not going to pay that or anything close. You don’t want to send the message to every single creator of a prop that ends up on the show that they can sue you for some nuisance lawsuit and you’ll pay them $20,000 to go away.”