A Copyright Fable: Debunking The “Seven-Second Rule”

From Trademark and Copyright Law:

If you are a television news producer or documentary filmmaker, you have almost certainly faced this issue: You are putting together a story about a past event, and you want to make the point that this past event was once the subject of media coverage.  The easiest way to do that is to show some of that media coverage, for example, by including a short clip from the evening news or by panning across a newspaper article headline. Are you allowed to do that? Are you infringing the copyright in that news clip or in that article?

When I was a video editor (and not yet a lawyer), I was regularly told by other non-lawyers that such use was permissible as long as it didn’t violate the “seven-second rule.” This apocryphal safe harbor provided that, if you show a copyrighted work for fewer than seven seconds, then you were protected either by the fair use doctrine or by the equally mythical doctrine of “nobody cares.”  Why do intelligent professionals pass on such fables to each other? Perhaps it is because, when you are knee-deep in raw footage and working on a deadline, you crave certainty.

In fact, such certainty rarely exists in copyright law. There is no “seven-second rule;” there is no “nobody cares” doctrine; and advanced reliance on predictions about fair use (a notoriously uncertain inquiry) is risky at best.

. . . .

The closest thing in actual copyright law to the “seven-second rule” fable is the de minimis defense, which derives from the legal maxim de minimis non curat lex (the law does not concern itself with trifles). In copyright law, the de minimis doctrine is not truly a separate defense but an extension of the elements of copyright infringement: to prove copyright infringement, you must prove copying, which can be done with a showing that the copyrighted work and the allegedly infringing work are “substantially similar.”  Where copying has occurred but it is so trivial that the works cannot really be said to be substantially similar, the copying is considered to be de minimis and therefore non-actionable.

Link to the rest at Trademark and Copyright Law

The OP provides some good examples of why questions like, “Can I include this in my novel?” are not always easy to answer.

If PG were king for a day, he would probably add some safe harbor provisions to copyright law that set clearer boundaries between what uses of others’ original work are and are not permissible.


11 thoughts on “A Copyright Fable: Debunking The “Seven-Second Rule””

  1. “If PG were king for a day, he would probably add some safe harbor provisions to copyright law that set clearer boundaries between what uses of others’ original work are and are not permissible.”

    I definitely agree with that. Copyright law (like all laws) should be clear, including when it’s okay to use copyrighted material without permission. It’s a pretty poor use of the court’s time (and taxpayer money) to have to sort out each case/argument over what’s allowed on an individual basis, and after the fact so that the person who used the work, if found in the wrong, has to pay for a ‘crime’ they didn’t even know they’d been committing. (Yes, some people knowingly misuse copyrighted works, and ignorance is no defense in any case, but that should apply only when the law is clear, it seems to me.)

  2. A lot of people push the envelope of what is permissible, on purpose, hoping not to get caught.

    The non-existence of these ‘rules’ is easy to ascertain – and they don’t bother.

    There are plenty of 7-second long pieces of film which are memorable. People who use these short clips don’t pick the boring parts.

  3. While PG is at it, could he please use his kingly powers to regularize copyright law across borders? Or does he need to be sovereign of the world for that?

    A specific example is the King James version of the Bible. You would think that it would be long out of copyright. And it is–everywhere except the UK, where the rights are “vested in the Crown.” You must get permission to quote passages in commercial works in order not to be in violation.

    A clear example of how you can unknowingly violate copyright. I wonder how many others there are.

    • I don’t think kingly powers traditionally are trans-national, the British pretense that Wales is a separate nation notwithstanding. We will at the least need imperial powers here.

    • Interesting point. Regarding the Bible and other older works, people sometimes forget that while the original book may be out of copyright, translations aren’t, necessarily (although of course this translation is centuries old).

      When I needed to quote from the Bible for my horror novel Echoes, I rephrased the apocalyptic quotes so they wouldn’t match anybody’s translation. This drove the copy editor nuts, as she was conscientiously trying to find the correct reference for attribution, until she asked me & I explained. Then it was fine.

      • That must have been a lot of work! I’d take the easier way out by using one of the translations that has clear copyright usage rules (most allow liberal quoting) rather than try to assure that I matched no translation.

  4. “…For example, a parodic novel like The Wind Done Gone may fairly copy a whole lot of protected elements from the thing it is parodying (Gone with the Wind) or the parody will not work…” This is what I call the parody defense.

  5. However, the Five Second Rule for dropped food still stands. Unless you have a fast-moving dog in the house. Or sticky candy falls on carpet. 😉

  6. I vote we either enact one of the following two solutions:

    1) Elect PG Emperor of the Planet for life;
    2) Cobble together a clearinghouse of sorts to state what’s okay to use without risk of copyright violation, and what’s not.

    Example in support of either option: I once asked on a writer’s loop if I could use (in my novel) my own translation of a foreign language song that’s under copyright. Authoritative sources in reply said, “As long as the translation’s your own, yes, you can.” And, “No, no possible way, the translation itself is infringement.”


    • Considering translation rights for publishing your novels in other countries is something you as an author expect to be able to license for money, I’d definitely expect the same to be true of other copyrighted work.

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