Ancient Roman lawyers may not have concerned themselves with trifles, but, apparently, the proud holders of the Silver Slugger pinball machine copyright do. Thus, Gottlieb Development LLC, which owns the copyright for this apparently distinctive gaming device, filed a complaint against Paramount Pictures in March of 2008 for copyright and trademark infringement for the studio’s infringing use of the pinball machine in a three-and-a-half minute scene in the film, What Women Want, released in 2000.

For all of you who are not film historians with a specialty in Mel Gibson romantic comedies from the turn of the millenium, What Women Want stars Gibson as a womanizing ad exec–pre-Mad Men, so sans cigarettes–who magically gains the ability to hear women’s thoughts. He tries to use his newfound power for good, that is, to seduce his boss, Helen Hunt, but, alas, fails. Eventually, lots of other good things happen to him and he gains valuable insight into what women want. (Oh, for the days when Mel Gibson romantic comedies used to bring in $182 million at the U.S. box office!)

There was no fairy tale end for the Silver Slugger, though. At the end of 2008, the Southern District of New York proudly sided with the Romans and, quite frankly, did not buy any infringement claim. They agreed with the defendants’ motion to dismiss, asserting that any infringing use of the pinball machine’s distinctive logo and features was “de minimis,” that is, so trivial as to fall below the qualitative threshold of substantial similarity necessary for a copyright infringement claim. The court noted that, in order to determine this qualitative threshold, one must take into account “observability” of the copyrighted work and the amount of time it actually appeared on screen, along with other extraneous factors, such as lighting, camera angles, and whether or not the object was in focus. In the scene at issue, the Slugger appears only in the background, is never explicitly referred to, and never receives any precious solo screen time.

However, what, perhaps, is more interesting than the court’s discussion of where Gibson’s head is positioned in relation to the Silver Slugger logo during this now very minorly famous three-and-a-half minute scene, is what is not addressed in the opinion: the statute of limitations. Civil actions under the Copyright Act are governed by a three-year statute of limitations. However, the cause of action accrues only when a plaintiff knows or has reason to know of the injury on which the claim is premised.

In its opposition brief, Gottlieb alleges harm to its business reputation based on Mel Gibson’s highly publicized, post-arrest anti-Semitic rant from March of 2006. Are we to assume that Gottlieb only became aware of the infringing use after its executives casually re-watched What Women Want in the comfortable confines of their homes sometime in the latter half of 2006? Are there copyright holders sitting on viable claims of infringement hoping that celebrities who appeared in a scene twenty years ago with their product have some sort of public meltdown that might actually give them very slight legs to stand on when claiming harm to their business reputation? After this opinion, I doubt the movie studios are going to be shaking in their very large and expensive figurative boots.

To Paramount’s credit, it did admit that the use of the Silver Slugger in the movie was an infringement on Gottlieb’s copyright, and, perhaps in doing so, ceded the battle to win the war. Because, now, instead of painstakingly getting prop release forms signed by every possible copyright holder of any possible item that might appear in a particular scene, a task with which the production crew for this big budget film apparently did not want to bother, if the crews, in the future, make sure to keep their lights off of the Silver Slugger and its kin, the studios might be able to get off release-free.

Stuart Burkhalter

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