In 1982, John Kisch photographed an unidentified woman holding a concertina in a corner of the Village Vanguard, a Manhattan nightclub. Kisch registered the copyright in this black-and-white image. Three years later, advertising agency Ammirati & Puris (“Ammirati”) created a campaign for Rose’s Lime Juice. One advertisement featured a color photograph of the musician John Lurie holding a saxophone in the same corner of the Village Vanguard featured in Kisch’s photograph. The backgrounds, angles, and lighting of the photographs were similar.

Kisch brought a copyright infringement suit in the Southern District of New York, and Ammirati along with its fellow defendants (two beverage companies and the photographer of the advertisement, together with Ammirati, the "Ammirati defendants") moved for summary judgment based on a lack of substantial similarity between the images. The district court summarized the standard for proving copyright infringement: Kisch must prove his work was copied by demonstrating access and substantial similarity of protected elements.

Because the Ammirati defendants conceded access to Kisch’s photograph, the district court moved to the second prong and concluded a rational trier of fact could find substantial similarities between the protected elements. Both images feature figures seated with musical instruments against the same mural, photographed from a similar angle with similar lighting. The district court ruled that an ordinary observer would also be able to find that the underlying tone or mood of the Ammirati defendants' photograph was similar to the original conception expressed in Kisch’s work. The district court stated, “where a photographer ‘in choosing subject matter, camera angle, lighting, etc., copies and attempts to duplicate all of such elements as contained in a prior photograph,’ then even though ‘the second photographer is photographing a live subject rather than the first photograph . . . such an act would constitute an infringement of the first photograph.’” Thus, the Ammirati defendants’ motion for summary judgment was denied.

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