The opinion of the court was delivered by: VICTOR Marero, United States District Judge.
Plaintiff Frank Fournier ("Fournier") commenced the present action
alleging copyright infringement of his photograph titled "Young Dynamic
Stock Broker from the Rear" and related state law causes of action.
Defendants McCann Erickson ("McCann") and the Microsoft Corporation
("Microsoft") have moved for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure, primarily on the grounds that there
exists no substantial similarity between Fournier's photograph and the
allegedly infringing one. For the reasons set forth below, defendants
motion for summary judgment is granted in part and denied in part.
In 1999, Microsoft retained the services of McCann, an advertising
agency, to launch an advertising campaign for Microsoft's Windows 2000
product line. In what appear to have been the initial consultations
between Microsoft and McCann, or perhaps at McCann's own initiative, the
underlying concept behind the campaign was conceived before Fournier even
appeared on the scene. McCann asserts, and Fournier does not dispute, that
McCann sought to highlight the theme of innovation in the Windows 2000
product. In that regard, McCann coined a slogan which eventually became
the one implemented by Microsoft: "The old rules of
business no longer apply."*fn1
It also appears that in connection with its own ideas about the
advertising campaign, McCann had in mind the kind of photograph that it
wanted to implement into the print advertisements of the Windows 2000
campaign. In keeping with the notion that "the old rules of business no
longer apply," McCann conceived of the idea of using an image, from a
rear perspective, of a casually dressed man walking to work among
traditionally dressed businessmen.
The Vice-President of McCann, Philip Pavliger ("Pavliger"), contacted
Chameleon Photos, Inc. ("Chameleon"), a New York corporation engaged in
the business of supplying photographs and photographers for commercial
projects. At first, Pavliger inquired about purchasing the rights to use a
"stock" photograph, that is, an existing picture, for use in the Windows
2000 campaign.*fn2 Chameleon provided some stock photographs, but did
not believe that there was a suitable option among its inventory.
At the time, Chameleon was acting as an agent for Fournier and
introduced him to McCann for the purposes of setting up a "speculative
assignment." The speculative assignment was a formal contract between the
parties which contemplated that Fournier would take photographs based on
the McCann concept.*fn3 If McCann believed that Fournier's work could be
implemented into the Windows 2000 campaign, the parties contemplated
separate negotiations for fee and usage rights. In the event that no
agreement was reached or the photographs were unsuitable for the
campaign, McCann agreed to pay Fournier's expenses.
The events leading up to the speculative assignment are largely
undisputed. Going forward, however, the parties begin to differ
slightly, but significantly, in their recollections of the events. As
noted above, by the time it engaged the services of Fournier, McCann had
already established the basic concept behind the Windows 2000 campaign
and had in mind the kind of photograph it wanted to use in the print
advertisements. Therefore, McCann hired Fournier for the purpose of
creating a specific photograph in accordance with McCann's instructions.
Exactly what those instructions were, however, is important to the
dispute hand, which revolves around Fournier's claim of copyright over
his original work.
From the parties' submissions, there is no material dispute that McCann
conveyed to Fournier not only the basic concept of the campaign, but also
certain specific elements that the photograph should contain. For
instance, McCann provided a "comp" to both Chameleon and Fournier, which
was attached to the speculative assignment.*fn4 A comp is an exemplar, a
rough photograph conveying the basic concept behind the speculative
assignment. The comp given to Fournier clearly shows a casually dressed
man carrying a bag, from a rear perspective, in an urban setting. McCann
also advised Fournier that the casually dressed man should be surrounded
by commuters in traditional business dress.*fn5 McCann further alleges
that it
even specified some of clothing and accessories for the casually
dressed commuter: shorts, sandals and a briefcase.*fn6 Fournier concedes
in his deposition that Pavliger instructed him that the central figure
should wear a red shirt, something along the lines of a red Hawaiian
shirt.*fn7
Although the exact instructions given to him remain unclear, Fournier
set out to shoot a photograph with the underlying concept and whatever
parameters McCann had conveyed to him. It also appears undisputed that
Fournier chose the site of the shoot, the arrangement of the models, the
general layout and other specific aspects which were not pre-determined
before the actual shoot.
The end result of Fournier's shoot was over 200 photographs of a
casually dressed man among other commuters in traditional business garb,
likely on their way to work in an urban setting. McCann contends that the
exact photograph that it wanted was not among Fournier's photographs, but
that a composite pieced together from several of them could be
workable.*fn8 Fournier and McCann then entered into negotiations
for a license to use the photographs, which ultimately ended without
agreement between the parties. According to McCann, Fournier's opening offer
was in excess of nine times the amount McCann believed to be a reasonable
and customary usage fee.*fn9 Although the price eventually came
down, the corresponding limitations in the scope of the usage rights
compelled McCann to reject Fournier's offer. McCann paid Fournier's expenses
as set forth in the speculative assignment, and the two parted ways.
McCann then retained the services of a freelance photographer in San
Francisco to create the desired picture. Ultimately, McCann chose to
implement one of the photographs from this subsequent shoot into the
Windows 2000 campaign. In January 2000, the Microsoft advertisements
featuring this photograph began to appear. The parties agree that the
advertisement ceased running in periodicals around May 2000.*fn10
Fournier, however, did not have a valid copyright until March 13,
2000.*fn11 Nevertheless, based on the allegedly substantial
similarities between Fournier's photograph and the one which appeared in the
Windows 2000 advertisement, Fournier commenced the present action asserting
claims of copyright infringement, unfair competition and tortious
misappropriation of goodwill.
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary
judgment shall not be granted unless "the pleadings, depositions, answers
to Interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Anderson
v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986); Gallo v. Prudential Residential Servs.,
Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). Courts must resolve
all ambiguities and draw all reasonable inferences in favor of the
non-moving party. See Gallo, 22 F.3d at 1223. In the final ...