Mannion v. Coors Brewing Co. (377 F.Supp.2d 444) is a 2005 copyright case decided by the United States District Court for the Southern District of New York. It concerns the issue of copyrightability in photography. Jonathan Mannion, the plaintiff, sued the brewer and its advertising agency, Carol H. Williams Advertising (CHWA), alleging they had too closely copied an image he took of basketball star Kevin Garnett.
Mannion had photographed Garnett wearing athletic clothing and jewelry for a magazine article. CHWA, after having licensed Mannion's image for possible use on a billboard, decided to shoot a very similar image for its ads. Mannion registered his image with the U.S. Copyright Office and sued Coors and CHWA after seeing one of the billboards several months later. Coors argued in its defense that Mannion was claiming copyright on the idea of a photo of a Black man dressed that way and there was nothing original and protectable in it. Nor were the two images substantially similar since the man in the Coors ad was turned in a different direction and the image was in black and white rather than color. Both parties moved for summary judgement.
Judge Lewis A. Kaplan's decision denied Mannion's motion since he found the substantial similarity question to be one of fact that should be tried. (A jury ultimately found for Mannion.) But he held also that Mannion's image was indeed original enough to be copyrighted. Finding existing case law wanting on what constituted originality in photography, he established three criteria—rendition, timing and composition—for determining the originality, and thus the copyrightability, of photographs. He also criticized the applicability of the idea-expression dichotomy and its merger doctrine to visual art, including photography. Scholars have in turn expressed concern about some of the implications of the case, while praising it as "the most extensive judicial discussion of photographic copyright in recent years". It has been cited by other courts deciding whether photographs at issue are eligible for copyright protection, including in cases filed against Rihanna and Beyoncé.
Underlying dispute
In 1999 Slam, a magazine that covers basketball from a perspective shaped by hip hop culture, commissioned photographer Jonathan Mannion to take pictures of Kevin Garnett, then a young star with the Minnesota Timberwolves, for a story the magazine was running on him. Mannion, whose earlier images of Garnett had met with the player's approval, went to Garnett's home. Garnett said he would do anything Mannion wanted. "I want you to wear all the jewelry you have in this moment of over-opulence and go crazy", he responded.
Garnett went to his wardrobe and came back wearing a white T-shirt and pants with a black baseball cap. He had, as suggested, put on a wide array of jewelry, including several necklaces, bracelets on both wrists, earrings, rings on one finger of each hand, all of gold or platinum with diamond settings. On his right wrist he had a Rolex watch. Mannion shot him with his head cocked, his eyes looking to the right and his hands on his abdomen with the thumbs hooked in his waistband. He was lit from the left, the camera looking upwards at him from below, with a cloudy background through which some blue sky was visible.
"[A] storm was coming in and I remember that being the moment", Mannion recalled to Slam in 2013. "There are a handful of pictures that exist like that in my career, and that's one of them." The story ran in the magazine's December 1999 issue, with the photograph rotated at a 90-degree angle counterclockwise and most of Garnett's left arm cropped out in order to fit onto a two-page spread. It had the headline "Above the Clouds".
In 2001, the Coors Brewing Company tasked the Carol H. Williams Advertising (CHWA) agency with developing a new campaign to increase consumption of its Coors Light brand among young Black men in urban areas. Among the ideas CHWA considered was something based on Mannion's photo of Garnett. One of its "comp boards", mockups for outdoor advertising such as billboards proposed for the campaign, included the part of Mannion's image that showed Garnett's torso, without his head, and on the other side a can of Coors Light, with the phrase "Iced Out" (referencing both the diamonds in the jewelry and the actual ice on the beer can) in between on a background with clouds and sky. Mannion had licensed this use to CHWA. Later they contacted him, among other photographers, to see if they would be interested in producing an image for the campaign. Mannion submitted a bid but heard nothing in response.
Unbeknownst to Mannion, CHWA and Coors decided to use an image very similar to his picture of Garnett. After he saw it on a billboard while driving around Los Angeles, he pulled over, took a picture of the billboard and asked his studio to send him his original so he could compare them, believing they had used his image without permission. It was not, but "[t]hey copied it so identically down to the placement of the watch and it wasn't KG's Rolex, it was a Folex with a different color band or whatever."
Mannion submitted his image to the Copyright Office for formal registration in 2003. Early the following year he filed suit against Coors and CHWA in the United States District Court for the Southern District of New York alleging copyright infringement and seeking damages. After submitting evidence to Judge Lewis A. Kaplan, the parties both moved for summary judgement in their favor, arguing there were no disputed issues of fact to be decided.
Decision
After summarizing the facts of the case, Kaplan turned to the underlying law. Coors conceded that Mannion's copyright on the image was valid, and Kaplan said it would be reasonable for a trier of fact to conclude that since Coors had actual access to the image, actual copying occurred. The question then was whether the two images were substantially similar.Mannion, 449–50
To determine that, Kaplan asked what aspects of the original could be considered original to it and protectible under Mannion's copyright. He began with an observation from Nimmer on Copyright, a frequently cited legal treatise, that copyright in photography cannot cover the subject matter of the photograph. "But this is not always true", Kaplan wrote:Mannion, 450–51
In Burrow-Giles Lithographic Co. v. Sarony, the 1884 case where the Supreme Court had upheld Congress's grant of copyright protection to photography, Kaplan noted that it held that most photographs could claim some protectible originality. Later courts' efforts to more specifically define what constituted that originality "are somewhat unsatisfactory", he observed, for two reasons.
First, Kaplan said, "the nature and extent of a photograph's protection differs depending on what makes that photograph original." Second, they inadvertently elevated the photographer's technical choices in making the image to originality sufficient to confer copyright. "Decisions about film, camera, and lens, for example, often bear on whether an image is original", Kaplan observed. "But the fact that a photographer made such choices does not alone make the image original." This was not just an observation; it contravened the Supreme Court's more recent decision in Feist Publications, Inc., v. Rural Telephone Service Co. rejecting the "sweat of the brow" doctrine. "Protection derives from the features of the work itself, not the effort that goes into it." Kaplan also recalled the decision he had handed down several years before in Bridgeman Art Library v. Corel Corp., where he had rejected the plaintiff's claim that American copyright law protected its photographs of classic artworks themselves in the public domain since the immense effort that went into making them look exactly like the originals meant Bridgeman's photos were "slavish copies" that similarly could not claim copyright protection for lack of originality.
Originality in photography
"The Court therefore will examine more closely the nature of originality in a photograph", Kaplan announced. He wrote that he found useful The Modern Law of Copyright, a treatise on English copyright law by Hugh Laddie, a High Court judge in the UK, since despite differences in other areas of copyright law the two jurisdictions had similar conceptions of originality. "A photograph may be original in three respects", Kaplan concluded. "They are not exclusive."Mannion, 452–54
The first Kaplan called : the combined effect of the camera, its settings such as exposure and aperture, lens, films, lighting and developing techniques used, as well as the angle and framing, on the image. "To the extent a photograph is original in this way," the judge concluded, "copyright protects not is depicted, but rather it is depicted." He cited SHL Imaging v. Artisan House, Inc., a 2000 case decided by the Southern District in which it held that the unlicensed reuse of images of mirror-clad picture frames the defendant manufacturer had commissioned from the plaintiff photographer was infringing. The manufacturer had argued that the photographer could claim no independent copyright in images entirely of products it had designed, but Judge William H. Pauley III rejected it, pointing to the effect of the photographer's technique on the images. "What made the photographs original," in that case, Kaplan commented, "was not the lens and filter selection themselves. It was the effect produced by the lens and filters selected, among other things." He distinguished them from the photographs in Bridgeman, where "the goal was to reproduce exactly other works. The photographs were entirely unoriginal in the rendition, an extremely unusual circumstance. Unless a photograph replicates another work with total or near-total fidelity, it will be at least somewhat original in the rendition."
Secondly, Kaplan found that a photographer's may give rise to originality in a photograph. The legal precedent was an early 20th-century case, Pagano v. Charles Beseler Inc., again from the Southern District, in which the copyright of a photograph of a street scene in front of the New York Public Library was challenged. The court, finding for the photographer, observed that "It undoubtedly requires originality to determine just when to take the photograph, so as to bring out the proper setting for both animate and inanimate objects.... The photographer caught the men and women in not merely lifelike, but artistic, positions, and this is especially true of the traffic policeman."
Kaplan looked outside reported case law for examples modern readers would be more familiar with: first, Alfred Eisenstadt's V-J Day in Times Square, and wildlife photographer Thomas D. Mangelsen's widely reprinted Catch of the Day, showing a grizzly bear waiting with an open mouth for a salmon leaping out of an Alaskan river. Timing necessarily applied only to the image, and not its subject matter:
The third aspect, creation of the subject, was an exception to the general rule that photographers cannot claim copyright over the subject matter, Kaplan wrote. This applied to images such as posed portraits and still lifes where the photographer created the scene and had a large degree of control over what appeared in the image and where. Kaplan looked at Gross v. Seligman and Rogers v. Koons, two cases decided decades apart by the Second Circuit Court of Appeals, which has appellate jurisdiction over the Southern District.