HBO escaped a copyright lawsuit on Tuesday May 1, after a New York federal judge dismissed claims filed against the network by a graffiti artist. Last July, Itoffee R. Gayle, sued the television network for featuring his artwork in the background of a scene from the network series “Vinyl.” The show centers on the 1970s New York music scene and stars Bobby Cannavale who plays record executive Richie Finestra. Gayle brought claims of copyright infringement and unfair competition under the Lanham Act, 15 U.S.C. § 1125(a), among others, and sought $1,500,000 plus legal fees.

Last September, HBO moved under Rule 12(b)(6) to have the claims dismissed arguing that its use of the graffiti is de minimis and non-actionable because it amounts to fair use. The judge agreed. In tossing the suit, he stated that “Gayle’s claims are premised on a fleeting shot of barely visible graffiti painted on what appears to be a dumpster in the background of a single scene.” The judge even said that Gayle’s claims “border on frivolous.”

In the scene at issue, a woman is shown walking down a New York City street and passing a dumpster marked with graffiti that says “Art We All One.” Gayle claims the phrase is his intellectual property. Judge Jesse Furman explained that even if HBO had chosen to use the work for “thematic relevance” the use is still de minimis. Gayle tried to establish that viewers noticed his art through an Instagram message congratulating him on the graffiti’s appearance in the episode. But the judge wasn’t convinced explaining that the social media user “is hardly a stand-in for the ‘average lay observer’ relevant to the copyright inquiry […] or the ‘ordinary prudent purchasers’ relevant to the trademark inquiry.”