Peter B. Kaplan took the photograph Wingtips Over the Edge in 1988, and subsequently published it in The Creative Black Book, which was allegedly distributed to photo agencies like Stock Market Photo Agency (“Stock Market”). Wingtips Over the Edge depicts a view of a businessman’s shoes on the edge of a building, as if the man were contemplating jumping into the city below. In the early 1990s, Kaplan submitted the image to a competition to be featured in a camera lens manufacturer’s advertising campaign. The competition required that the image include “the shoes of a businessman standing on the ledge of a tall building directly opposite another tall building having sharp horizontal and vertical lines, [demonstrating the] new lens’ lack of [perspective] distortion.” Kaplan lost to Bruno Benvenuto, who reworked his winning photograph and licensed the final image to Stock Market.

In 1999, Kaplan sued Stock Market, Benvenuto, and Fox News Network (who later obtained Benvenuto’s photo for another ad campaign) (collectively, the “Stock Market defendants”) for copyright infringement. Assessing the Stock Market defendants’ motion for summary judgment, the court sitting in the Southern District of New York explained that Kaplan must demonstrate that the Stock Market defendants substantially copied the protected elements of his image in order to prevail in court because copyright protection extends only to expressions, not ideas. Here, the idea or subject matter of both photographs—“a businessperson contemplating a leap from a tall building onto the city street below”—necessarily created similarities in expression. Similarly, the contest’s rules that the entrants must depict a “businessman standing on the ledge of a tall building directly opposite another tall building having sharp horizontal and vertical lines” was so specific as to necessitate some similarity between all submissions. Thus, the district court found that the doctrine of scenes à faire was apt in this case: many of the shared elements of the photographs (e.g. attire of a businessman) predictably resulted from a shared subject matter and thus were not protectable. The portions of the photographs that were protectable, however, such as lighting, shading, and color, did differ between the two images. The district court therefore concluded that a rational trier of fact would not be able to find the two photographs substantially similar and granted the Stock Market defendants’ motion for summary judgment.