An artist named Rochlitz posed and photographed a nude model for a work titled Grace of Youth, and obtained copyright before selling all rights in the image to the plaintiffs. Two years later, Rochlitz posed the same model in the same pose, slightly modifying her expression and adding a cherry stem between her teeth. He titled this photograph Cherry Ripe and published the image.

In response, the plaintiffs sued the defendants for copyright infringement of Grace of Youth. The district court ruled in favor of the plaintiffs and the Second Circuit affirmed. On appeal, the Second Circuit acknowledged that “the eye of an artist or a connoisseur” will find differences between the two photographs. However, the appellate court clarified that “the identities are much greater than differences” and held that to an “ordinary purchaser who did not have both photographs before him at the same time,” Cherry Ripe would appear to be a copy of Grace of Youth. Therefore, the appellate court affirmed the district court’s decision that the defendants infringed even if the two works are by the same artist.[1]

[1] For a similar case regarding the possibility of infringement despite the two works being from the same artist, see Franklin Mint Corp. v. National Wildlife Art Exchange, Inc., 575 F.2d 62 (3d Cir. 1978)

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