## Facts

- A photographer, Rochlitz, created an artistic nude photograph titled “Grace of Youth,” obtained a copyright, and transferred all rights to the plaintiffs.
- About two years later, Rochlitz photographed the same model in essentially the same pose, lighting, and composition, producing a second image titled “Cherry Ripe.”
- The later photograph included only minor changes (including a slightly different facial expression and a cherry stem placed between the model’s teeth).
- Rochlitz sold “Cherry Ripe” to the defendants, who published it.
- Plaintiffs sued for copyright infringement, alleging “Cherry Ripe” was a copy of “Grace of Youth.”

## Issues

1. Whether an artistic photograph constitutes protectable authorship comparable to a painting for copyright purposes.
2. Whether a later photograph made by the same photographer, using the same model and nearly identical composition with only minor changes, infringes the copyright in an earlier photograph whose rights the photographer had assigned.
3. Whether substantial similarity should be assessed based on the perception of an ordinary observer rather than expert scrutiny of small differences.

## Decision

- The Second Circuit affirmed the district court’s judgment for the plaintiffs.
- The court recognized photography as copyrightable artistic authorship when the photographer’s creative conception is expressed through pose, lighting, and arrangement.
- The court held that “Cherry Ripe” infringed “Grace of Youth” because the similarities substantially outweighed the differences, which were trivial.
- The court concluded that infringement could be found even though both works were made by the same photographer after he had transferred the copyright in the earlier work.

## Legal Principles

- Artistic photographs are protected by copyright to the same extent as works made in traditional media when they reflect original creative conception fixed in a tangible form.
- An author who has assigned a copyright can infringe the assignee’s exclusive rights by later creating and selling a work that is essentially the same, with only trivial variations.
- Substantial similarity is assessed by whether an ordinary observer would regard the later work as a copy; minor differences identifiable to experts do not preclude infringement when overall identity predominates.
- Independent creation by a different artist may avoid infringement even where two works are strikingly similar, but close similarity combined with common authorship supports an inference of copying.

## Conclusion

The Second Circuit treated photography as protectable artistic expression and held that a photographer who sold the copyright in a photograph could later infringe it by making and marketing a nearly identical re-creation with only minor alterations, judged by ordinary-observer similarity.


Gross v. Seligman, 212 F. 930 (2d Cir. 1914)