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Argued: June 27, 2000

Creator of nonfunctional jewelry worn in the manner of eyeglasses brought this action in the U.S. District Court for the Southern District of New York (Sweet, J.) alleging copyright infringement after the defendant, an international retailer, used a photograph of an individual wearing the plaintiff’s design as part of an advertising campaign for defendant’s merchandise. The district court granted summary judgment for the defendant. The Court of Appeals, Leval, Circuit Judge, affirms in part, but vacates the judgment and remands, finding that (1) plaintiff pleaded a sustainable claim for declaratory relief, (2) plaintiff’s evidence was sufficiently concrete to justify a damage award under 17 U.S.C. � 504 based on plaintiff’s failure to collect a reasonable license fee, (3) punitive damages were not available, (4) the action was not subject to dismissal under the de minimus rule, and (5) the defendant’s use was not protected by the fair use doctrine. Affirmed in part, vacated in part, and remanded for further proceedings.

Plaintiff On Davis (“Davis”) appeals from an order of the United States District Court for the Southern District of New York (Sweet, J.) granting summary judgment to the defendant, The Gap, Inc. (“the Gap”), dismissing plaintiff’s claim of copyright infringement. See Davis v. The Gap, Inc., No. 97 CIV. 8606(RWS), 1999 WL 199005 (S.D.N.Y. Apr. 9, 1999) (“Davis I”); Davis v. The Gap, Inc., 186 F.R.D. 322 (S.D.N.Y. 1999) (“Davis II”).

 
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