## Facts

- Peter B. Kaplan, a professional photographer, created the photograph “Wing Tips Over the Edge” in 1988 and registered its copyright effective May 15, 1989.
- Kaplan’s photo depicts a suited businessperson standing at the edge of a tall building and looking down at a city street below from the subject’s viewpoint.
- In 1994, Bruno Benvenuto, working with The Stock Market Photo Agency, Inc., created a separate photograph for advertising use that also depicted a suited businessperson on a high ledge looking down, conveying a stressed or desperate mood.
- Fox News Network, L.L.C. and Crain Communications, Inc. used the Benvenuto/agency photograph in advertising or publication contexts.
- Kaplan sued, alleging the defendants copied protectable elements of his photograph and asserted a related New York unfair competition claim.
- Defendants moved for summary judgment, arguing any similarities reflected an unprotectable idea and standard features associated with that idea rather than protectable expression.

## Issues

1. Whether the allegedly infringing photograph was substantially similar to Kaplan’s photograph in protectable expression, after excluding unprotectable ideas and scènes à faire.
2. Whether a New York unfair competition claim based on the same alleged copying can survive when the copyright claim fails.

## Decision

- The court granted summary judgment for all defendants.
- The court held that no reasonable jury could find substantial similarity between the works’ protectable elements.
- The court concluded the shared aspects concerned the general idea of a businessperson on a ledge looking down at a city street and other standard components flowing from that idea.
- The court dismissed the New York unfair competition claim because it depended on the same non-actionable copying theory.

## Legal Principles

- Copyright protects original expression, not general ideas, concepts, or themes.
- Substantial similarity analysis requires filtering out unprotectable material, including ideas and scènes à faire, and comparing only protectable expressive choices.
- Scènes à faire—elements that naturally follow from a common idea or are standard to depicting it—are not protectable.
- Where a state unfair competition claim merely repackages an unsuccessful copyright claim based on alleged copying, it fails with the copyright claim.

## Conclusion

Because the works overlapped only in an unprotectable concept and standard visual elements associated with depicting that concept, and differed in protectable expressive details, the court entered summary judgment for defendants and dismissed both the copyright and unfair competition claims.


Kaplan v. Stock Mkt. Photo Agency, Inc., 133 F. Supp. 2d 317 (S.D.N.Y. 2001)