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Photographer Peter Kaplan thought that his portrayal of a businessman about to leap from a ledge high atop a Wall Street building should be protected by copyright. But U.S. District Judge Allen G. Schwartz of the U.S. District Court for the Southern District of New York thought otherwise. In a ruling last week, Schwartz dismissed Kaplan’s claims against the Fox News Network and The Stock Market Photo Agency, finding that Kaplan’s photo “Wing Tips Over the Edge” and the photos assembled by competitor Bruno Benvenuto for two ad campaigns are not “substantially similar.” Schwartz, in Kaplan v. The Stock Market Photo Agency Inc., 99 Civ. 10218, also rejected Kaplan’s claim of unfair competition, ending the two-year old suit. “In designing his photograph, Benvenuto added his own originality to the underlying, unprotectible idea of a businessperson on contemplating a leap from a tall building to a street below, and his expression of that idea is not infringing as a matter of law,” Schwartz said. Kaplan created “Wing Tips” in 1988 and copyrighted the work in 1989. The photo also appeared in a photographic compilation, “The Creative Black Book,” which is distributed to professional photographers as well as photograph, advertising and design agencies. Eight years ago, Kaplan and Benvenuto both bid for the job of creating photographs for an advertising agency that was assembling a campaign for Tamron, a maker of camera lenses. The agency wanted to promote Tamron’s new, wide-angle lens by using photographs that showed a “flat field perspective” without distortion at the edges. An executive at the ad agency created a prototype image for bidders on the project, one that showed a businessman on a ledge of a building directly across from another building with sharp horizontal and vertical lines, which Kaplan claimed was inspired by his own work. Benvenuto was awarded the job, and he produced a “final image” for the Tamron campaign that was submitted to The Stock Market Photo Agency for licensing purposes. The Stock Market Photo Agency licensed the photo to an ad agency, which in turn used it in an ad campaign for “Fox News Edge,” a show on Fox News Network, entitled “The World Looks Very Different From the Edge.” Judge Schwartz noted that determining which elements of a work are protectible is “an inexact science and is case-specific.” IDEA NOT PROTECTED “It is a fundamental principle of copyright law that a copyright does not protect an idea or a concept but only the expression of that idea or concept,” he said. “Similarly, the doctrine of scenes a faire holds that sequences of events necessarily resulting from the choice of setting or situation … are not protectible under the copyright laws.” In Kaplan’s case, he said, “the court finds that nearly all the similarities between the works arise from noncopyrightable elements.” “As the photograph’s central idea, rather than Kaplan’s expression of the idea, this subject matter is unprotectible in and of itself,” he said. “Moreover, as the situation of a leap from a tall building is standard in the treatment of the topic of the exasperated businessperson in today’s fast-paced work environment, especially in New York, the subject matter of the photographs is also rendered unprotectible by the doctrine of scenes a faire.” Schwartz went on to break down the photographs, conceding that both depicted shoes partially extended over the ledge of the building. “However, such positioning is essential to the businessperson’s contemplation of a suicide leap; it would be impossible to depict the photograph’s subject matter without portraying him in this pose,” he said. As to the fact that both businessmen are wearing pinstripe suits and wing-tip shoes, Schwartz said “such is the businessperson’s typical garb, and therefore might reasonably be expected to appear in any expression of the unprotectible idea in question here.” DIFFERENCES NOTED And Schwartz declined to accept Kaplan’s argument that the Benvenuto photo misappropriated the “particular expression” of the “lower pant leg and shoes, the sheer side of the building and the traffic below.” As the defendants argued, Schwartz said, “in order to most accurately express the idea of a businessperson’s contemplation of a leap, the photograph must be taken from the ‘jumper’s’ own viewpoint, which would (1) naturally include the sheer side of the building and the traffic below, and (2) logically restrict the visible area of the businessperson’s body to his shoes and a certain portion of his pants legs … . “ Other elements of the photographs, including the activity on the street and next to the would-be jumper, as well as the lighting, shading and color employed, and the “background and perspective,” are “significantly different,” Schwartz said. Dori Ann Hanswirth, of Squadron, Ellenoff, Plesent & Sheinfeld, represented Fox News Network and Crain Communications Inc. Joseph M. Burke, of Burke & Russo, represented The Stock Market Photo Agency. L. Donald Prutzman, of Tannenbaum Helpern Syracuse & Hirschtritt, represented Kaplan.

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