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May 30, 2002


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 ...

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