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Jack Leigh, the photographer who took the famous “Bird Girl” picture that appeared on the cover of the book “Midnight in the Garden of Good and Evil,” and was later reproduced in and on promotional materials for the movie of the same name, is entitled to a jury trial on at least one of his claims, the 11th U.S. Circuit Court of Appeals held May 25 ( Leigh v. Warner Brothers Inc., 11th Cir., No. 99-10087, 5/25/00). While Leigh could not prove as a matter of law that sequences in the movie in which the statue appeared were substantially similar to his photograph, a jury must decide whether the pictures used in the studio’s printed materials were substantially similar to the original, the court said in an opinion by Senior Judge Phyllis Kravitch. EVOCATIVE PHOTO Leigh was commissioned by Random House to take a photo for the book’s cover. After reading the manuscript, Leigh explored appropriate settings in Savannah. Ultimately, he selected a sculpture in the Bonaventure Cemetery known as the “Bird Girl.” Leigh granted Random House the right to use the resulting photo, but retained ownership and registered a copyright. Warner Brothers decided to use the “Bird Girl” statue in its promotional materials for a movie based on the book. Since the family that owned the cemetery plot on which the original sculpture stood had it removed before the film began shooting, Warner Brothers created a replica with the sculptor’s heirs’ permission and placed it in a new location in the cemetery. All of Warner Brothers’ shots — both film footage and still — were of the replica. Leigh sued Warners for copyright infringement, citing both the film footage and the still photographs. To establish his claim, Leigh was required to show ownership of a valid copyright and that the defendant copied original elements of the work, the court said. Warners did not challenge Leigh’s claim to the copyright, so the focus in this case was on the second element of the claim. The U.S. District Court for the Southern District of Georgia granted summary judgment for Warners, saying that no reasonable jury could find that the images used by Warners were substantially similar to the aspects of Leigh’s work that were protected by his copyright. Leigh appealed. SUBSTANTIAL SIMILARITY Copying, the court said, can be established by showing that the defendant had access to the copyrighted work and produced a work that was “substantially similar” to the original. “Substantial similarity” in this sense means that an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work. “‘Substantial similarity’ also is important in a second, more focused way,” the court wrote. “No matter how copying is proved, the plaintiff must also establish specifically that the allegedly infringing work is substantially similar to the plaintiff’s work with regard to its protected elements.” First, the court examined the scope of Leigh’s copyright. It found that the copyright did not cover the appearance of the statue or the cemetery, since Leigh had no rights in either. Nor did the copyright protect the association of the statue with the book, the court said. Although Leigh may have been the first to think of the statue as evocative of the book’s mood and as a symbol of the book’s themes, copyright law does not protect ideas. Thus, the court said, the district court correctly identified the protectable elements of Leigh’s photograph as the selection of lighting, shading, timing, angle, and film. The court rejected Leigh’s argument that the lower court also should have considered the overall combination of these elements, as well as the mood they conveyed. “Analyzing relatively amorphous characteristics of the picture as a whole (such as the ‘mood’ or ‘combination of elements’) creates a danger of unwittingly extending copyright protection to unoriginal aspects of the work,” the court said. “This danger is especially acute in a case such as this, in which the unprotected elements of the plaintiff’s work — the haunting pose and expression of the Bird Girl and the cemetery setting — are so significant.” Although acknowledging that other courts have independently evaluated the “mood” of a work, the court found it “safest to focus on the more concrete elements of the photographer’s craft.” Mood is not so much a separate element of a work, the court said, as it is the effect created by the lighting, shading, timing, angle, and film. “As long as the analysis [of these elements] is not overly detached and technical, it can adequately address both the effect of the protected, original elements of Leigh’s photograph on the viewer and the contribution of those elements to the work as a whole,” the court wrote. FILM vs. STILL The 11th Circuit concluded that the lower court correctly held as a matter of law that the film sequences in which the Bird Girl appears were not substantially similar to the plaintiff’s photograph. The lighting, shading, angle, and surroundings were different from those of the photograph. In short, the court said, “[t]hese film sequences have nothing substantial in common with Leigh’s photograph except the statue itself.” But, the “same cannot be said for Warner Brothers’ photographic images,” the court held. While there were undeniable differences between the pictures, the “Warner Brothers images also have much in common with the elements protected by Leigh’s copyrights.” For example, the court said, all of the pictures were taken from a low position, angled up slightly at the Bird Girl; Spanish moss borders the top of nearly all the photos; the statue is usually closely centered in the frame; light shines down and envelopes the statue, leaving the surrounding cemetery in darkness, in all of the pictures; and all of the photographs are monochromatic. “These expressive elements all make the pictures more effective,” the court wrote. Although a jury might ultimately conclude that the similarities between the protected elements of the two works are not substantial, the similarities were substantial enough to preclude summary judgment, the court said. Substantial similarity is a question of fact, and summary judgment is appropriate only if no reasonable jury could differ in weighing the evidence. LANHAM ACT CLAIM Leigh also argued that Warner Brothers violated his trademark in the Bird Girl image. Once again, the district court granted summary judgment for the studio, and Leigh appealed. The 11th Circuit affirmed that ruling, saying that Leigh had not used his photograph of the statue in a trademark sense before Warner Brothers released its movie. The court also agreed with the district court that Leigh could not prove a likelihood of confusion — i.e., that consumers would believe that Leigh sponsored or was involved with the movie or its promotional materials.

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