To prove infringement, a plaintiff with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiff's work; and (2) the copying is illegal because a substantial similarity exists between the defendant's work and the protectible elements of plaintiff's. Actual copying - which is used as a term of art to mean that the defendant, in creating its work, used the plaintiff's material as a model, template, or even inspiration" - may be shown by direct evidence, which rarely is available, or by proof of access and probative similarities.
A photographer sued defendant advertising firm (Coors) and its client for copyright infringement. The parties cross-moved for summary judgment. The parties dispute whether a photograph used in billboard advertisements for Coors Light beer infringed the photographer's copyright in a photograph of a basketball star. Coors almost certainly imitated the photographer’s photograph. The photographer concededly owned a valid copyright in the photograph, and access was undisputed. There was ample evidence from which a trier of fact could have found that the advertising firm actually copied the photograph for the billboard. The major question is whether and to what extent what was copied is protected. The case required the Court to consider the nature of copyright protection in photographs.
Was there a violation of the photographer's exclusive right to prepare derivative works?
The court first held that the photographer held no copyright in an image derived from the copyrighted photo, for which he had given permission. Thus, insofar as the complaint alleged a violation of the photographer's exclusive right to prepare derivative works, it was dismissed. However, though the photograph was clearly original in the rendition and creation of the subject, a reasonable jury could have found substantial similarity either present or absent, so summary judgment was inappropriate.