## Facts

- A freelance photographer took a portrait of NBA player Kevin Garnett for a magazine feature, depicting him posed against a cloudy sky from a low, upward-looking angle, wearing plain clothing and substantial jewelry.
- The photographer later obtained copyright registration for the photograph.
- An advertising agency developing a beer billboard campaign created an internal “comp” using a manipulated version of the photograph; the photographer authorized only internal corporate use, not public advertising.
- The agency later produced billboards featuring a different model but using a similar cloudy-sky background, low-angle viewpoint, pose, styling, and overall visual arrangement.
- After seeing the billboards, the photographer sued the beer company and the advertising agency for copyright infringement.

## Issues

1. Whether the photograph contained sufficient original expression to be protected by copyright.
2. Whether the billboards were substantially similar to the photograph’s protectable elements such that infringement could be decided on summary judgment.

## Decision

- The court held the photograph was sufficiently original to be copyrightable.
- The court denied defendants’ motion for summary judgment that the work lacked protectable originality or that no actionable similarity existed.
- The court denied plaintiff’s motion for summary judgment on infringement, holding that substantial similarity of protected expression presented a triable fact issue for the jury.

## Legal Principles

- A photograph may embody protectable originality through the author’s choices in rendition (e.g., lighting and angle), timing, and composition/arrangement of the subject.
- Copyright requires independent creation and a minimal degree of creativity; it does not require novelty.
- Copyright does not protect general ideas or public-domain elements (e.g., a “man against sky” concept), but it may protect the particular selection, coordination, and depiction of such elements.
- Even where copying and access are evident, infringement turns on substantial similarity to protectable expression; if reasonable jurors could disagree, summary judgment is improper.

## Conclusion

The court recognized copyright protection for a staged portrait photograph based on the photographer’s expressive choices, but left infringement to the jury because the similarity analysis required separating protected expressive elements from unprotectable ideas and common subject matter.


Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444 (S.D.N.Y. 2005)