444 377 FEDERAL SUPPLEMENT, 2d SERIES point to a single relevant section within the the Burke letter because none of TWU’s TWU Constitution. Nor has Local 100 actions proximately caused these re-elec- explained how the actions of Hall or of the tions. Burke is not affiliated with TWU, Appeals Committee constituted a breach of and TWU cannot be liable for her actions. contract. Second, Local 100 fails to identi- Nor did TWU cause the new elections fy any tort committed by the TWU. Lastly, related to Hall’s mailing. Even they were although Local 100 seemingly raises a held at Local 100’s behest. The determi- claim under the LMRDA, it fails to explain nations of the DOL were not binding. how any of the acts of Hall or the Appeals Both the DOL and TWU left it up to Local Committee could ground a claim for dam- 100 to decide what it wanted to do: hold ages under the LMRDA. But it ultimate- new elections or face a civil action by the ly is not necessary for the Court to deter- DOL. The outcome of such a suit would mine whether Local 100’s contentions are have been far from certain, especially as it legally sound. Local 100’s counterclaim relates to Hall’s mailing. Local 100 must fails in any event because Local 100 has bear the costs of running the re-election it failed to prove that any act by TWU proxi- chose to run.31 mately caused Local 100’s injuries. Conclusion TWU did not cause Local 100 to spend money on Deinhardt. Local 100 appointed Defendant’s counterclaim is dismissed. Deinhardt and made her available to hear Upon entry of judgment, the Clerk shall all protests. It chose to spend its money close the case. in a particular way, as it concedes in its The foregoing shall constitute the memorandum.29 The actions of Hall and Court’s findings of fact and conclusions of the Appeals Committee were not a proxi- law. mate cause of Local 100’s expenditure for SO ORDERED. Deinhardt’s time. Second, the TWU Appeals Committee did not cause Local 100 to hold the re-run , elections. Local 100, remarkably, argues that the Committee caused Local 100 to hold re-runs in January 2004 in part be- Jonathan MANNION, Plaintiff, cause it did not stay the re-elections when so requested.30 This contention is base- v. less. Local 100 chose to hold those elec- COORS BREWING COMPANY and tions, knowing that Deinhardt’s decisions Carol H. Williams Advertising, were on appeal. It took the risk that the Defendants. Appeals Committee would reverse Dein- No. 04 Civ. 1187(LAK). hardt, an eminently foreseeable event. The Appeals Committee’s inaction there- United States District Court, fore did not cause the January 2004 Elec- S.D. New York. tions July 21, 2005. In light of the foregoing, the TWU can- Background: Owner of copyright in pho- not be liable for any re-election caused by tograph sued billboard advertiser for in- 29. Def. Br. at 3 (‘‘The Local 100 Executive 30. Def. Br. at 10. Board also chose to utilize the services of a Neutral Monitor to resolve election dis- 31. Rule 56.1 St. ¶ 38. putes.’’). MANNION v. COORS BREWING CO. 445 Cite as 377 F.Supp.2d 444 (S.D.N.Y. 2005) fringement. Parties cross-moved for sum- copyright infringing work absent consent; mary judgment. that is, infringement inquiry logically pre- Holdings: The District Court, Kaplan, J., cedes or at least controls derivative work held that: inquiry. (1) photograph was sufficiently original to 5. Copyrights and Intellectual Property warrant copyright protection, and O12(1) (2) fact issue existed as to whether photo- Sine qua non of copyright is originali- graph and billboard advertisement ty; copyright protection may extend only were substantially similar. to those components of work that are orig- Plaintiff’s motion denied; defendant’s mo- inal to author. tion granted in part and denied in part. 6. Copyrights and Intellectual Property 1. Federal Civil Procedure O2534 O12(1) Where cross-motions for summary ‘‘Original,’’ in copyright context means judgment are filed, court must evaluate only that work was independently created each party’s motion on its own merits, by author, as opposed to copied from other taking care in each instance to draw all works, and that it possesses at least some reasonable inferences against party whose minimal degree of creativity. motion is under consideration. Fed.Rules See publication Words and Phras- Civ.Proc.Rule 56(c), 28 U.S.C.A. es for other judicial constructions and definitions. 2. Copyrights and Intellectual Property O53(1) 7. Copyrights and Intellectual Property To prove infringement, plaintiff with O6 valid copyright must demonstrate that: (1) Nature and extent of photograph’s defendant has actually copied plaintiff’s copyright protection differs depending on work, and (2) copying is illegal because what makes that photograph original. substantial similarity exists between defen- 8. Copyrights and Intellectual Property dant’s work and protectable elements of O4 plaintiff’s. Copyright protection derives from fea- 3. Copyrights and Intellectual Property tures of work itself, not effort that goes O83(3.1) into making it. ‘‘Actual copying,’’ which is used as term of art to mean that copyright in- 9. Copyrights and Intellectual Property fringement defendant, in creating its work, O6 used plaintiff’s material as model, temp- Photograph may be original, for pur- late, or even inspiration, may be shown by pose of determining copyright protection, direct evidence, which rarely is available, in three, related respects: (1) rendition, or or by proof of access and probative simi- how subject is depicted; (2) timing, or larities between works. when subject is depicted; and (3) creation See publication Words and Phras- of subject. es for other judicial constructions and definitions. 10. Copyrights and Intellectual Property 4. Copyrights and Intellectual Property O6 O12(3) Insofar as photograph is original in Accused work will be considered de- rendition or timing, copyright protects im- rivative work only if it would be considered age but does not prevent others from pho- 446 377 FEDERAL SUPPLEMENT, 2d SERIES tographing same object or scene; to extent 16. Copyrights and Intellectual Property that photograph is original in its creation O53(1) of subject, however, copyright extends also In looking for substantial similarity to that subject. between copyrighted and allegedly infring- ing works, factfinder compares relevant 11. Copyrights and Intellectual Property elements of works, but does not view those O6 elements in isolation. Photograph of young black man wear- ing white T-shirt and large amount of jew- 17. Copyrights and Intellectual Property elry was sufficiently original to warrant O64 copyright protection; photographer used Although addition of text and other relatively unusual angle and distinctive visual elements was irrelevant to analysis lighting, posed subject against sky, and of similarity between copyrighted photo- orchestrated subject’s clothing and facial graph and accused billboard advertise- expression. ment, changes made to allegedly copied image were relevant. 12. Copyrights and Intellectual Property 18. Copyrights and Intellectual Property O4.5 O53(1) Copyright does not protect ideas, only If points of dissimilarity between their expression. copyrighted and allegedly infringing works 13. Copyrights and Intellectual Property not only exceed points of similarity, but O4.5 indicate that remaining points of similarity When given idea is inseparably tied to are, within context of copyrighted work, of particular expression, so that there is minimal importance, then no infringement ‘‘merger’’ of idea and expression, court results. may deny copyright protection to expres- 19. Copyrights and Intellectual Property sion in order to avoid conferring monopoly O89(2) on idea to which it inseparably is tied. Issue of material fact as to whether See publication Words and Phras- billboard advertisement depicting young es for other judicial constructions black man wearing white T-shirt and large and definitions. amount of jewelry was substantially simi- 14. Copyrights and Intellectual Property lar to copyrighted photograph of same O6 subject matter precluded summary judg- Merger doctrine did not preclude ment in infringement action. granting of copyright protection to photo- graph of young black man wearing white T-shirt and large amount of jewelry; it was possible to imagine any number of Mary D. Dorman, for Plaintiff. depictions of such subject matter. S. Raye Mitchell, The Mitchell Law 15. Copyrights and Intellectual Property Group, PC, for Defendants. O6 MEMORANDUM OPINION When determining copyright infringe- ment of photograph or other visual arts, KAPLAN, District Judge. idea/expression distinction is not useful or The parties dispute whether a photo- relevant. graph used in billboard advertisements for MANNION v. COORS BREWING CO. 447 Cite as 377 F.Supp.2d 444 (S.D.N.Y. 2005) Coors Light beer infringes the plaintiff’s Garnett’s torso, so that he appears to be copyright in a photograph of a basketball towering above earth. He wears a white star. The defendants almost certainly imi- T-shirt, white athletic pants, a black close- tated the plaintiff’s photograph. The ma- fitting cap, and a large amount of plati- jor question is whether and to what extent num, gold, and diamond jewelry (‘‘bling what was copied is protected. The case bling’’ in the vernacular), including several requires the Court to consider the nature necklaces, a Rolex watch and bracelet on of copyright protection in photographs. his left wrist, bracelets on his right wrist, The matter is before the Court on cross rings on one finger of each hand, and motions for summary judgment. earrings. His head is cocked, his eyes are Facts closed, and his heavily-veined hands, near- ly all of which are visible, rest over his Jonathan Mannion is a freelance photog- lower abdomen, with the thumbs hooked rapher who specializes in portraits of ce- on the waistband of the trousers.