Takeaway
In short, this case teaches that a photograph’s copyright can protect its staged arrangement and visual rendering, not merely its literal subject, and that close visual imitation will usually leave substantial similarity for the jury.
Photographer Jonathan Mannion took a portrait of basketball player Kevin Garnett for SLAM magazine. Mannion directed Garnett to wear plain white clothing, put on substantial jewelry, and appear “chilled out.” The resulting color photograph showed Garnett from a low, angled perspective against a cloudy sky, with distinctive lighting, pose, clothing, and jewelry.
Carol H. Williams Advertising, working for Coors Light, made an authorized internal “comp board” by manipulating Mannion’s photograph into a black-and-white mirror image and adding the phrase “Iced Out” and a Coors can. The agency solicited photographers, including Mannion, for the eventual advertising assignment but chose another photographer. The resulting Coors billboard showed a different muscular Black male model in a similar low-angle pose, wearing white clothing and prominent jewelry against a cloudy background, with comparable lighting.
Mannion registered his copyright in the Garnett photograph and sued Coors and the advertising agency for copyright infringement. Both sides moved for summary judgment. Judge Kaplan denied summary judgment on the core infringement claim because a jury reasonably could find either substantial similarity or insufficient similarity, but dismissed the claim insofar as it rested on Mannion’s exclusive right to prepare derivative works.
Issue #1
Whether the record permitted a finding that defendants actually copied Mannion’s Garnett photograph.
Holding
Yes. A reasonable factfinder could conclude that defendants actually copied the photograph, although the court did not grant Mannion summary judgment on that issue.
Reasoning
Copyright infringement requires both actual copying and unlawful appropriation of protected expression. “Actual copying” means that the defendant used the plaintiff’s work as a model, template, or inspiration; it may be proved through direct evidence or through access plus probative similarities.
Mannion owned a valid copyright, and defendants’ access to his photograph was undisputed. The advertising agency had made an authorized comp board directly from the Garnett photograph, had sent that image out while seeking bids for the billboard photography, and then produced a billboard that closely resembled the comp board. This evidence was ample to permit, though not compel, a jury finding of actual copying.
Issue #2
What aspects of a photograph receive copyright protection.
Holding
A photograph may be original, and thus protected, through its rendition of a subject, its timing, and its creation or arrangement of the subject; the scope of protection depends on which of those forms of originality is present.
Reasoning
Originality requires independent creation and at least a minimal degree of creativity. Copyright protects features present in the completed image, not merely the labor or technical choices involved in making it. Thus, choices of camera, lens, or film matter only insofar as they produce original visual effects in the photograph itself.
Originality in rendition concerns how an existing subject is depicted, including the angle, lighting, shading, exposure, focus, and comparable visual effects. When a photograph is original only in rendition, other photographers remain free to photograph the same underlying object or person, but they may not copy the original image’s protected visual treatment.
Originality in timing arises when the photographer captures a transient event or moment. That form of originality protects the image of the moment captured, not the underlying natural or public subject. A photographer who captures a dramatic wildlife moment, for example, cannot prevent others from independently photographing the same animals or location.
Originality also may arise from creating the subject itself. A photographer who arranges a scene, directs a model, selects clothing and props, or otherwise constructs what the camera records may obtain protection extending to that created arrangement. Another artist may infringe by recreating that arrangement in a photograph or another medium.
Issue #3
Whether Mannion’s Garnett photograph contained protectible original expression beyond Garnett’s unprotected likeness and the general existence of a cloudy sky, clothing, and jewelry.
Holding
Yes. The photograph was original in both rendition and creation of the subject, although Mannion could not claim exclusive rights in Garnett’s physical features or other preexisting elements viewed separately.
Reasoning
The Garnett photograph was plainly not a slavish reproduction of another work. Its unusual low angle, distinctive lighting, and composition gave Mannion protectible originality in rendition.
Mannion also contributed originality by staging the image. He placed Garnett against the sky, instructed him to wear simple clothing and as much jewelry as possible, and directed him to look relaxed. Even if Garnett selected some particular details, Mannion orchestrated the scene and chose to capture it in the final arrangement.
Mannion could not monopolize Kevin Garnett’s face, torso, or hands, nor could he prevent others from photographing Garnett or using clouds as a backdrop. But copyright analysis does not mechanically isolate each element. The protected work includes the original arrangement and visual treatment of otherwise familiar components.
Issue #4
Whether the billboard’s similarities with the photograph were merely an unprotected idea—such as a Black man in a white shirt wearing conspicuous jewelry—rather than protected expression.
Holding
No. The idea/expression argument did not defeat Mannion’s claim because the asserted similarities extended to the photographs’ particular arrangement and visual rendering, not merely to a generalized subject matter.
Reasoning
Defendants’ stated idea was far too general to account for the images’ similarities. Countless photographs could depict a Black man in a white T-shirt and jewelry without sharing the low-angle perspective, pose, background, composition, lighting, and overall visual arrangement found in these works.
Judge Kaplan explained that the idea/expression distinction, developed principally for literary works, is often a poor fit for visual art. In a photograph, an artist’s conception of how to portray a subject—through rendition, timing, and created arrangement—is often inseparable from what might be called the work’s “idea.”
For photographic infringement claims, the more useful inquiry is whether the later work is substantially similar to the original photograph’s protected rendition and created subject matter. A general description of the subject identifies what remains free for others to use; it does not erase protection for the photographer’s original visual arrangement.
Issue #5
Whether the Coors billboard was substantially similar to protected elements of the Garnett photograph as a matter of law.
Holding
Neither side was entitled to summary judgment. A reasonable jury could find substantial similarity, but it also could find that the differences were sufficient to avoid infringement.
Reasoning
The applicable inquiry compares the allegedly infringing work with the protected elements of the copyrighted work, while still considering the works’ total concept and feel. The court must identify what is unoriginal and free for public use, but it must not dissect an original image so narrowly that no meaningful combination of elements remains protected.
The two images shared features tied to Mannion’s protected expression: a similar low-angle composition, a similarly posed model, white athletic clothing, conspicuous jewelry arranged in a comparable way, a cloudy-sky backdrop, and comparable directional lighting. The billboard could therefore be understood as recreating much of the scene Mannion constructed and rendering it in a similar manner.
The images also differed in material respects. The billboard was a black-and-white mirror image, used a different model and showed only his torso, altered the jewelry and clothing fit, and had a darker visual treatment. Additions such as the “Iced Out” words and the Coors can could not excuse copying and were not relevant dissimilarities, but the other changes could affect the overall-similarity assessment.
Because an ordinary jury could reasonably view the protected aesthetic appeal as substantially similar or could reasonably view the changes as significant enough to prevent infringement, substantial similarity remained a factual question for trial.
Issue #6
Whether Mannion could maintain a separate claim based on defendants’ alleged preparation of an unauthorized derivative work.
Holding
No. The court dismissed that portion of the complaint.
Reasoning
The authorized comp board may have been a derivative work of the Garnett photograph, but Mannion had authorized its use for that purpose. Whether the later Coors billboard itself was a derivative work did not create an independent route to liability, because a work is derivative only if it would be infringing absent consent; the infringement analysis therefore controls.
Mannion had registered the Garnett photograph, not the manipulated image used in the comp board. He consequently could not premise an infringement suit on alleged similarity between the billboard and that unregistered comp-board image. The legally material comparison was between the registered Garnett photograph and the Coors billboard.