In 1993, Jack Leigh was commissioned by Random House to take a photograph for the cover of “Midnight in the Garden of Good and Evil,” (“Midnight”) a novel by John Berendt. Leigh explored Savannah, Georgia, came across the Bird Girl statue located in Bonaventure Cemetery, and photographed it for the book cover. Although Leigh granted Random House permission to use the photo, he maintained ownership and registered the copyright as his own.

Four years later in 1997, Warner Brothers produced a movie based on the book and decided to use the Bird Girl statue in its promotional materials as well as the beginning and end of the film. Because the original statue had been removed from the cemetery after the book’s publication, Warner Brothers created a replica with the permission from the heir of the sculptor. Warner Brothers then photographed and filmed the replica in a different location within Bonaventure Cemetery.

Leigh brought suit against three segments of film footage and six still images–all featuring the Bird Girl statue in Bonaventure Cemetery. Leigh alleged that these materials infringed on his copyright and trademark rights in his Bird Girl photograph.

The District Court for the Southern District of California granted summary judgment for Warner Brothers after ascertaining the protectable elements in Leigh’s photograph and determining that they were not similar enough to Warner Brothers’ materials. The Eleventh Circuit Court of Appeals agreed with the lower court’s holding regarding the film sequences, but said it erred by finding that no reasonable jury could find that the images were substantially similar.  

The key question presented to the appellate court is whether Warner Brothers’ images and film sequences were substantially similar to Leigh’s photograph enough to constitute copyright infringement. The appellate court begins by explaining that substantial similarity “exists where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” The appellate court also notes that the plaintiff bears the burden of demonstrating that the defendant’s work shares substantial similarity with regard to the protected elements.

The appellate court clarified that “Leigh’s copyright does  not cover the appearance of the statue itself or of  Bonaventure Cemetery” since Leigh had no rights in either . Leigh’s copyright also did not protect the association with the “Midnight” story, eerie mood, or thematic symbols. The appellate court warned that analyzing these amorphous characteristics based on the “feel” of a work was dangerous because it could extend copyright protection onto unoriginal aspects of a work. Instead, Leigh’s copyright rested in “elements of artistic craft,” namely the selection of lighting, shading, timing, angle, and film.

The district court found, and the appellate court agreed, that Leigh’s photograph and Warner Brothers’ film sequences were not substantially similar. The only significant commonality between the photograph and film sequences was the statue: the sequences were taken in a different part of the cemetery than the photograph and thus the background was different; one sequence included a Celtic cross, fog, and featured only part of the statue; the second was in daylight, partial color, and shot only parts of the statue on the the left side of the screen; and the third sequence was also in daylight and panned around parts of the statue on the left side of the screen.  Turning to the images in question, the appellate court notes that there are significant differences between the pictures. In the Warner Brothers’ pictures, the statue is smaller and more distant compared to Leigh’s images which emphasizes the foreground composed of vegetation and headstones. The statue is not the same size in Leigh’s photograph and the Warner Brother images with the exception of the soundtrack cover. Most of the Warner Brothers images also have a more dramatic lighting contrast and features additional elements not in  Leigh’s image: colorful tints, a Celtic cross, tree, and in the case of the movie poster, pictures of the cast.

However, despite these differences, Leigh’s image and Warner Brothers’ images “have much in common with the elements protected by Leigh’s copyright.” The appellate court notes that all the images are shot from a low position and angled in a way that conceals the Bird Girl’s hands and the contents of the bowl she is holding. Spanish hanging moss also borders the tops of all the photographs (minus the soundtrack cover) and all the photographs are monochromatic. Another similarity noted by the appellate court was that the statue is close to center in nearly all the pictures. In every image, light shines down and wraps the statue in a way that leaves the surrounding cemetery dark.  Leigh’s image and Warner Brother’s images are all monochromatic.These expressive elements “make the pictures more effective.”

The Eleventh Circuit concludes that although a jury may find that the similarities between Leigh’s photograph and Warner Brothers’ still shots are not substantial, the similarities are significant enough to preclude summary judgment as a matter of law. The appellate court noted that  substantial similarity is typically a question of fact for a jury and summary judgment is only granted if no reasonable jury could find that the works are substantially similar.