## Facts

- Jack Leigh, a professional photographer, created a well-known photograph of the “Bird Girl” statue in Bonaventure Cemetery used on the cover of *Midnight in the Garden of Good and Evil*.
- Warner Bros. produced a film adaptation of the book and used images of a Bird Girl statue in the film and in promotional materials.
- Warner filmed and photographed a replica of the statue, placed in a different cemetery location, with differing gravestones, greenery, and other scene elements.
- Promotional images included differences from Leigh’s photo such as added iconography (including a Celtic cross), altered framing, and higher lighting contrast.
- Leigh alleged that despite these differences, Warner copied protectable expressive elements of his photograph, pointing to similarities including a low camera angle, Spanish moss framing, and lighting that emphasized the statue.
- Leigh also asserted Lanham Act claims, alleging his Bird Girl photograph functioned as a trademark identifying him as the source of photographic goods and services.

## Issues

1. Whether Warner’s film sequences depicting the statue were substantially similar to Leigh’s protectable expression in his photograph.
2. Whether Warner’s promotional single-frame images were substantially similar to Leigh’s protectable expression such that summary judgment was improper.
3. Whether Leigh’s Bird Girl photograph functioned as a trademark (including through secondary meaning) identifying the source of Leigh’s goods or services.
4. Whether the district court abused its discretion by granting summary judgment without permitting additional discovery.

## Decision

- Affirmed summary judgment for Warner on copyright infringement claims based on the film sequences because no reasonable jury could find substantial similarity to Leigh’s protected expression.
- Reversed summary judgment for Warner on copyright infringement claims based on certain promotional single-frame images because a reasonable jury could find substantial similarity in protected elements.
- Affirmed summary judgment for Warner on all Lanham Act claims because Leigh failed to show the photograph served as a source identifier for his goods or services.
- Affirmed the district court’s decision to proceed to summary judgment without further discovery as to the claims resolved as a matter of law, while noting additional discovery could be appropriate on remand for the surviving copyright claim.

## Legal Principles

- Copyright in a photograph protects original expressive choices (including lighting, shading, angle, timing, and film quality), not the underlying subject matter or general ideas (such as photographing a particular statue in a cemetery).
- Substantial similarity focuses on whether protected expression, viewed as a whole, would be recognized by an ordinary observer as appropriated; although commonly for a jury, summary judgment is proper when no reasonable jury could find substantial similarity.
- Moving film sequences may be materially dissimilar from a still photograph due to motion, changing perspective, and added cinematic context, even where some compositional features overlap.
- Single-frame promotional images may present a closer comparison to a still photograph; if similarities in protected expressive elements could support infringement, the issue should proceed to a jury.
- An image’s fame or recognizability does not establish trademark rights; Lanham Act protection requires evidence that the image functioned as a mark identifying source (often through secondary meaning), rather than as a decorative or expressive element.

## Conclusion

The Eleventh Circuit held that Warner’s film sequences did not infringe Leigh’s photographic copyright and that Leigh lacked evidence that his photograph operated as a trademark, but it allowed Leigh’s copyright claim regarding certain promotional still images to proceed because a jury could find substantial similarity in protectable expressive elements.


Leigh v. Warner Bros., Inc., 212 F.3d 1210 (11th Cir. 2000)