JOSHUA ETS-HOKIN, Plaintiff-Appellant, v. SKYY SPIRITS INC., a Delaware corporation; MAURICE KANBAR; DANIEL DADALT, aka Daniel Dadait, Defendants-Appellees, and JOHN P. BENSON; UNIDIGITAL-TX; LORETTA J. NEEDHAM; NEEDHAM, Defendants. JOSHUA ETS-HOKIN, Plaintiff-Appellee, v. SKYY SPIRITS INC., a Delaware corporation; MAURICE KANBAR, Defendants-Appellants, and DANIEL DADALT, aka Daniel Dadait; NEEDHAM, Defendants., 323 F.3d 763

Summary

The photographer took pictures of the customer's blue vodka bottle for use in a marketing campaign. The customer later hired two other photographers to photograph the bottle and used those photographs in marketing materials. The photographer alleged infringement of his copyrights in the earlier photographs. In a prior opinion, the court held that the photographs met the minimal threshold of originality required for copyright protection, but noted that such protection was limited by the doctrines of merger and scenes a faire, which applied because of the narrow range of artistic expression available in the context of a commercial product shot. On remand, the trial court again found for the customer. The court held that the allegedly infringing photographs were not virtually identical as required upon application of the defensive doctrines of merger and scenes a faire. The lighting differed; the angles differed; the shadows and highlighting differed, as did the reflections and ...