On July 21, 2005, Judge Lewis Kaplan of the SDNY issued an opinion (only available over the weekend) in Mannion v. Coors Brewing Co., 2005 U.S. Dist. LEXIS 14686. Judge Kaplan is a scholarly, brilliant jurist whose opinions always contain a lot of learning, in this case about photography. Mannion is a worthy round two for yesterday's discussion.
In Mannion, a freelance photograph took photos of basketball star Kevin Garnett for SLAM magazine, which published them in conjunction with an article in the December 1999 issue. In December 2001, an ad agency for Coors beer used a manipulated version of one of Manning's photo for a "comp board" on which a picture of a can of Coors was superimposed along with the slang phrase "Iced Out." Permission was obtained for this internal use only. The rest of the story could be filled in by anyone: an ad is later generated and used without permission as a billboard that is alleged to capture the look and feel of Mannion's photo.
Validity of the copyright and access were undisputed, the only issue being substantial similarity. The court denied most of defendant's motion for summary judgment in a lengthy discussion of the protectible elements in photographs and their infringement.
On the question of originality, one distinction Judge Kaplan made (and that was noted in comments on the first posting), was between "decisions that a photographer makes in creating a photograph and the originality of the final product." Judge Kaplan recited language from prior decisions about choice of film, camera, and the like, but found that "the fact that a photographer made such choices does not alone make the image original. ... Protection derives from the features of the work itself, not the effort that goes into it." Interestingly, in further delving into the scope of originality (in order to determine how far plaintiff's copyright reached), Judge Kaplan relied on an English copyright treatise, Sir Hugh Laddie's "The Modern Law of Copyright and Designs" (2000).
Judge Kaplan also reviewed a question not touched on last week, rights over the subject of the photo, questioning the oft-cited principle that copyright confers no right over the subject of the photo, and refining the principle so that "to the extent the photograph is original in the creation of the subject, copyright extends also to the subject. Thus, an artist who arranges and then photographs a scene often will have the right to prevent others from duplicating that scene in a photograph or other medium." Obviously, the idea/expression dichotomy has a large role to play in all this, and there is a very extensive discussion of that principle, in which Judge Kaplan joined those who have come to reject Nimmer's meaningless "abstractions test."
This was all prelude to the infringement analysis, an analysis which includes a helpful discussion of the total-concept-and-feel versus more discerning observer approaches, although not choosing one since he denied defendant's motion, sending the case to a jury.