Photographer Loses Lawsuit Over His Photos in Billie Eilish Documentary

screenshot from the documentary
Screengrab from the documentary with Michael Kelley’s photos showing in the background.

A photographer has lost a lawsuit against Apple over images that appeared in the background of a documentary about singer Billie Eilish — with a judge calling the usage “too trivial” to be deemed infringing.

Photographer Michael Kelley sued Apple and production company Morning Bee for copyright infringement after 10 of his photos were featured in the 2021 documentary film Billie Eilish: The World’s a Little Blurry.

Kelley’s Airportraits photography exhibit appeared in the backdrop of a Maori cultural group’s performance at New Zealand’s Auckland Airport that was observed by Eilish in the documentary.

Kelley is known for photographs of subjects such as airplanes and architecture. Some of his works were being displayed in Auckland Airport at the time.

However, a New York federal judge tossed Kelley’s copyright case against Apple and Morning Bee last month — saying that the fleeting appearance of the photos in Eilish’s documentary is deemed “de minimis” or minimal.

According to Law360, U.S. District Judge Gregory H. Woods dismissed Kelley’s lawsuit — claiming that the photographer’s images only appeared in the background of a short scene.

Judge Woods also says that the camera does not focus on any one of Kelley’s photographs at any time and “nor are they [the images] more well-lit than the performers or Eilish and her family” in the documentary.

“[The] photographs appear in the 140-minute film from a total of seven to 14 seconds per photograph.” Judge Woods writes in his ruling.

“In these fleeting shots, moreover, the photographs are oftentimes obstructed, out of focus, under low lighting, displayed at an angle to the viewer, and at all times in the background — far from appearing prominently in the film.”

Judge Woods said that the appearance of Kelley’s photographs in the documentary constituted fair use. Bloomberg Law reports that the judge said that barring the use of images like this would stifle other documentary makers in the future.

“The defendants’ transformative, fleeting, and incidental use of plaintiff’s photographs, which appear in the background of an under-one-minute scene of a 140-minute documentary, is fair use.”

In March, PetaPixel reported on a family who was suing Netflix for using images of their house that were allegedly taken by a drone in an ad for a reality television show.

Image credits: Header photo via court documents.