Unhappy with a pic of NBA star Kevin Garnett that they had a licence to use, beer brewer Coors’ ad agency re-created it instead. But did the original photographer’s licence cover this?
Topic: Intellectual property
Who: Coors Brewing Company
Where: US Federal Court
When: Late 2005
What happened:
Brewer Coors was sued for copyright infringement by a photographer in respect of an outdoor poster. The photographer had granted Coors the right to reproduce a photograph he had taken of NBA player Kevin Garnett. But Coors and its ad agency had for reasons best known to themselves decided not to use that exact image, but to re-create it. They found another model, got him to pose in the same way as Garnett did in the licensed photograph, took it from the same angle and got him to wear the same clothes.
When the photographer sued Coors for copyright infringement, Coors applied to strike the action out. The court refused. The photographer had given permission for his picture to be used in an ad, but had not given permission for a derivative to be made in this way. In the view of Judge Kaplan of the Court, a reasonable jury could find that the reconstituted image was substantially similar to the photographer's picture and thereby infringed copyright.
Why this matters:
It is often the case that agencies and their clients decide to re-constitute an image in an existing photograph, perhaps from a photograph library, or maybe to digitally alter it. This case underlines the fact that there may still be copyright difficulties if the image that comes out of the process is substantially similar to the original photograph, no matter how superficially commonplace the original image might look.
A photographic image does not have to be unique to be protected by copyright. The law of copyright protects the care and skill that goes into creating a particular artistic work, in this case a photograph. If the alleged infringer takes a short cut by piggybacking off that care and skill and ends up producing something that looks remarkably similar, there will be significant risks.
