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💡intro to intellectual property review

De minimis analysis

Written by the Fiveable Content Team • Last updated September 2025
Written by the Fiveable Content Team • Last updated September 2025

Definition

De minimis analysis refers to the legal principle that considers an infringement or use of copyrighted material to be so small or trivial that it does not rise to the level of a substantial violation, and therefore does not constitute copyright infringement. This analysis is particularly relevant in the context of the fair use defense.

5 Must Know Facts For Your Next Test

  1. The de minimis analysis is used to determine whether the use of a copyrighted work is so insignificant that it does not constitute a violation of the copyright holder's exclusive rights.
  2. Courts will consider the amount and substantiality of the portion used in relation to the copyrighted work as a whole when conducting a de minimis analysis.
  3. The de minimis doctrine is often applied in cases where the accused work has only used a small, insignificant portion of the copyrighted work, such as a brief quote or a short excerpt.
  4. Transformative use, where the new work adds something new and alters the original with a different purpose or character, can weigh in favor of a finding of de minimis use.
  5. The de minimis analysis is a flexible and fact-specific inquiry, and courts will consider the overall context and purpose of the use when determining whether it is de minimis.

Review Questions

  • Explain how the de minimis analysis is used in the context of the fair use defense.
    • The de minimis analysis is particularly relevant in the context of the fair use defense, as it allows courts to consider whether the use of a copyrighted work is so insignificant that it does not rise to the level of a substantial violation of the copyright holder's exclusive rights. If the use is found to be de minimis, it may be considered fair use, even if the use does not necessarily meet all of the factors of the fair use test. The de minimis analysis allows courts to take into account the overall context and purpose of the use, as well as the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  • Analyze how the concept of transformative use can impact the de minimis analysis in a fair use case.
    • The concept of transformative use can be an important factor in the de minimis analysis within the context of the fair use defense. If the accused work has used a copyrighted work in a transformative manner, adding something new with a further purpose or different character, altering the original with new expression, meaning, or message, this can weigh in favor of a finding of de minimis use. Even if the amount of the copyrighted work used is relatively small, the transformative nature of the use can demonstrate that the use is not a substantial violation of the copyright holder's exclusive rights. Courts will consider the overall context and purpose of the transformative use when conducting the de minimis analysis as part of the fair use evaluation.
  • Evaluate the role of the de minimis analysis in the broader framework of copyright law and its impact on the balance between the rights of copyright holders and the public's interest in access to and use of copyrighted works.
    • The de minimis analysis plays an important role in the broader framework of copyright law, as it helps to strike a balance between the rights of copyright holders and the public's interest in access to and use of copyrighted works. By allowing courts to consider uses of copyrighted material that are so insignificant that they do not rise to the level of a substantial violation, the de minimis analysis helps to prevent copyright law from being used to stifle legitimate and socially beneficial uses of copyrighted works, such as for the purposes of criticism, comment, news reporting, teaching, scholarship, or research. At the same time, the de minimis analysis ensures that copyright holders maintain the ability to enforce their exclusive rights against uses that do substantially infringe on their works. The flexibility and fact-specific nature of the de minimis analysis allows courts to carefully weigh the competing interests and ensure that copyright law is applied in a way that promotes the progress of science and the useful arts.