In Gottlieb Development LLC v. Paramount Pictures Corp., 2008 WL 5396360 (S.D.N.Y. December 29, 2008), Judge Denny Chin tossed out a copyright and trademark infringement claim brought by a manufacturer of pinball games against a film production company on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The claim was that Paramount put a Gottlieb pinball machine in the background of a scene featuring Mel Gibson in the film "What Women Want".
The defendant attached a copy of the DVD to its motion to dismiss. The court looked at the offending footage and found that the fleeting glimpse of the pinball machine was so trivial that he could throw out the copyright infringement claim and the trademark infringement (false endorsement) claim, even though the complaint had adequately pleaded the unauthorized copying claim.
Significantly, in determining the motion to dismiss, Judge Chin applied the U.S. Supreme Court's "plausibility" standard to the set of facts alleged in the complaint. See Bell Atlantic Corp. v. Twombly, 125 S. Ct. 1955, 1969 (2007), stating "...the Silver Slugger was filmed in such a manner and appears so fleetingly that I conclude there is no plausible claim for copyright infringement here" and "Because Gottlieb does not amplify its trademark claim with factual allegations to rise 'above the speculative level' [ ] its trademark infringement claim is hereby dismissed.
Two cases to compare are Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 75 (2d Cir. 1997) and Sandoval v. New Line Cinema Corp., 147 F.3d 215, 217 (2d Cir. 1998).