Several months ago, I wrote about the case Leigh v. Warner Brothers, a copyright infringement lawsuit filed by photographer Jack Leigh against Warner Brothers. Leigh took the cover photo of the "Bird Girl" statue for the book Midnight in the Garden of Good and Evil." Leigh claimed that Warner Brother’s depiction of the statue in the movie and in publicity stills infringed his copyright in his photograph.

            As I reported in the earlier column, the district court granted summary judgment (judgment without trial) to Warner Brothers, holding that none of the depictions of the statue by Warner Brothers was substantially similar to Leigh’s photograph. The Court of Appeals recently reversed part of that decision.

            The Court of Appeals agreed with the lower court that the depiction of the "Bird Girl" in the movie was not substantially similar to Leigh’s photograph. However, the court held that Leigh was entitled to have a jury determine whether the Warner Brothers stills were substantially similar to Leigh’s photograph. The Court noted that while Leigh’s copyright does not cover the appearance of the statue or the association of the statue with the Midnight story, his copyright does protect elements of artistic craft such as "the selection of lighting, shading, timing, angle, and film." If the jury concludes that the photographer who took the Warner Brothers stills copied these protected elements from Leigh’s work, Leigh will win this aspect of his lawsuit.

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• Leigh v Warner Bros. 10 F.Supp 2d 1371, 1998
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