It's a close call, so a jury has to decide. The judge decided that the Coors ad is so similar in its overall 'vibe' and setup to Mannion's original photo that it might be illegal copying, so the case can't be dismissed. The judge explained that a photo can be original and protected in three ways: 1) How you take it (the angle and lighting), 2) When you take it (capturing a perfect moment), and 3) What you set up (creating the scene yourself). Mannion's photo was special because he created the whole scene—the pose, the clothes, the jewelry, the background. Copyright protects the total combination of all those things that made his photo unique. Because the Coors ad seemed to copy that total 'look and feel,' a jury needs to make the final decision about whether it was illegal copying.

Yes, the Coors ad might illegally copy Mannion's photo. The ad is similar to the original, creative parts of Mannion's photo, like the way it was taken and the scene he created, which copyright law protects. For photos, it's not helpful to talk about 'ideas' vs. 'expressions' like in other types of art. If a photo is original in some way, it can be copyrighted. The differences between the ad and Mannion's photo, like words and a beer can, don't really matter for figuring out if the ad is too similar. What matters is that the ad copies the overall original scene Mannion created, not just small details. Since this is a close call, a jury should decide if the ad is too similar to Mannion's photo.

In fact, one court determined that, "[i] n the context of photography, the idea/expression distinction is not useful or relevant."

"A photograph may be original in three respects:... rendition... timing...[and] creation of the subject."

On the other hand, "if we use identical phrases from one context to resolve issues in another, we risk failing to notice that the relevant concepts are and ought to be somewhat different."

Id. "Almost any photograph may claim the necessary originality to support a copyright," as long as there is some originality in "rendition... timing...[or] creation of the subject."

—the court relied on both Bridgeman opinions for the principle that no copyright inheres in images that seek to accurately reproduce paintings that have passed into the public domain.

In some cases, the original expression may be found in the staging and creation of the scene depicted in the photograph.

—" `a plaintiff with a valid copyright must demonstrate that:(1) the defendant has actually copied the plaintiff's work; and (2) the copying is illegal because a substantial similarity exists between the defendant's work and the protectible elements of plaintiff's

And finally, a photograph "may be original to the extent that the photographer created the scene or subject to be photographed."

—employs three categories of originality for assessing photographic work: originality in (1) rendition,(2) timing, and (3) creation of a subject.

—has attempted to explain the nature of photographic copyrights—in this case, of a posed photograph of basketball star Kevin Garnett dressed in “bling bling.”

Not as a matter of law, but a reasonable jury could find infringement. The allegedly infringing photograph may be substantially similar to the original's protectable elements because copyright protects a photographer's unique choices in rendition and creation of the subject, and the overall aesthetic appeal of the two works could be seen as the same. The court reasoned that a photograph's originality, and thus its copyright protection, can derive from three sources: rendition (angle, lighting, exposure), timing, and creation of the subject (staging the scene). Mannion's photograph possessed originality in both rendition and creation of the subject, as he orchestrated the scene, including the clothing, jewelry, pose, and backdrop. While individual elements like a cloudy sky or a white T-shirt are unprotectable in isolation, their selection, arrangement, and the overall composition are protected. The court found the traditional idea/expression dichotomy unhelpful for visual works, stating that the proper analysis is whether the 'total-concept-and-feel' of the protectable elements is substantially similar. Given the similarities in composition, angle, lighting, and subject matter, a reasonable jury could find the works substantially similar, precluding summary judgment for either party.

Yes, the Coors Billboard may infringe on the copyright of the Garnett Photograph because the similarities between the two works relate to the Garnett Photograph's originality in the rendition, timing, and creation of the subject, which are protected elements. I emphasize that the idea/expression distinction is not useful in photography and that almost any photograph with some originality in these aspects can support a copyright. While there are differences between the works, such as the addition of the words 'Iced Out' and a can of Coors Light beer, these do not enter into the substantial similarity analysis that focuses on the protected elements. The originality of Mannion's photo extends beyond the individual clothing, jewelry, and pose viewed in isolation - it is the entire image depicting the subject in a particular arrangement that is at issue. This case cannot be decided as a matter of law and presents a triable issue of fact for the jury regarding substantial similarity.

Mannion v. Coors Brewing Co.

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Rule of Law:

The Legal Principle

Facts:

Procedural Posture:

How It Got Here

Issue:

Legal Question at Stake

Opinions:

Majority, Concurrences & Dissents

Analysis:

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