Can You Prevent Others From Taking The Same Photos That You Have Already Circulated And Published?

            Photographer Jack Leigh faced a copyright problem. On assignment he had photographed a statue in the Bonaventure Cemetery in Savannah, Georgia for a book cover for the publisher, Random House. The book was "Midnight in the Garden of Good and Evil." The name of the sculpture was "The Bird Girl." His photography expressed the supernatural and ethereal mood of the book successfully.

            Warner Bros., the filmmaker, later made a movie of the novel and decided to use the "Bird Girl" theme for its promotion and Web icons. Warner Bros. got permission from the sculpture’s copyright owner and made a replica of the statue and had its staff photograph the statue in various ways.

            Leigh objected to the film company using someone else’s photo instead of his own and sued for copyright and trademark infringement when he saw the photos.

            Both the Leigh photo and Warner Bros. photos depicted the same statue so there were certain similarities in the resulting images.

            The judge, John Nangle, held that Leigh is "not entitled to copyright protection for his choice of subject matter (in this case the "Bird Girl" statue) The reasoning was that Leigh did not alter the statue’s physical appearance or take part in the actual creation of the statue such as its pose or expression.

            He also said that Leigh could not claim right to the "eerie" or "spiritual" mood of the of the photo because statues in cemeteries are often depicted in this manner. These intangibles are rarely protected by copyright. Leigh is entitled to copyright protection for his "selection of lighting, shading, timing, angle, and film," Judge Nangle ruled.

            On the trademark rights, Judge Nangle acknowledged that there has been a debate over protection for the trademark style of artists and photographers. In other words, if you’ve established a certain style in the stock photography industry, is it ethical for another photographer to come along and copy your recognized style of photographing?

            Judge Nangler reasoned that limiting ideas and themes and in effect giving a monopoly to artists in certain visual rights might nullify the spirit of the copyright law which is supposed to encourage the free flow of information and at the same time give protection to current and future authors of created works.

            Judge Nangler granted Warner Bros. summary judgement and dismissed Leigh’s claims.

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