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Judge Stanton Read the Full-Text Opinion PLAINTIFF OWNS the copyright to a photograph that she claimed was infringed upon by defendant’s painting, which had been commissioned and exhibited by the co-defendants. The court granted the defendants summary judgment dismissing plaintiff’s infringement claims, concluding that defendant painter had made a fair use of the photograph as a matter of law. It concluded that defendant painter’s use of the only items that he copied from the photograph was different from their use in the photograph-whose purpose was to illustrate nail polish-and that those items were used in a novel way to impart new information and new aesthetics so that their use was transformative as articulated in American Geophysical Union v. Texaco Inc. The court also determined that the painting was not a substitute for plaintiff’s photograph and did not compete with the photograph in any manner but rather that the painting’s market was one that plaintiff’s photograph had no chance to capture.

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