He had, as suggested, put on a wide array of jewelry, including several necklaces, bracelets on both wrists, earrings, rings on one finger of each hand, all of gold or platinum with diamond settings.

"[2] The story ran in the magazine's December 1999 issue, with the photograph rotated at a 90-degree angle counterclockwise and most of Garnett's left arm cropped out in order to fit onto a two-page spread.

After submitting evidence to Judge Lewis A. Kaplan, the parties both moved for summary judgement in their favor, arguing there were no disputed issues of fact to be decided.

Kaplan also recalled the decision he had handed down several years before in Bridgeman Art Library v. Corel Corp.,[11] where he had rejected the plaintiff's claim that American copyright law protected its photographs of classic artworks themselves in the public domain since the immense effort that went into making them look exactly like the originals meant Bridgeman's photos were "slavish copies" that similarly could not claim copyright protection for lack of originality.

"[12][5] The first Kaplan called rendition: the combined effect of the camera, its settings such as exposure and aperture, lens, films, lighting and developing techniques used, as well as the angle and framing, on the image.

The legal precedent was an early 20th-century case, Pagano v. Charles Beseler Inc., again from the Southern District, in which the copyright of a photograph of a street scene in front of the New York Public Library was challenged.

Timing necessarily applied only to the image, and not its subject matter:[12] ... the copyright in Catch of the Day does not protect against subsequent photographs of bears feasting on salmon in the same location.

Kaplan looked at Gross v. Seligman and Rogers v. Koons, two cases decided decades apart by the Second Circuit Court of Appeals, which has appellate jurisdiction over the Southern District.

In that case the court found enough difference between two images showing the same idea, a view looking down the face of a tall building from the perspective of a businessman standing on a ledge, his shoes prominent in the foreground, to hold against infringement of the plaintiff's copyright.

[18] In two decisions of the Second Circuit, rendered 30 years apart, Judge Learned Hand had acknowledged the issue of distinguishing the idea from the expression in a work, Kaplan observed.

"[21] Second Circuit Judge Jon O. Newman, had, when holding for the panel in Warner Bros. Inc. v. American Broadcasting Companies, Inc. that the title character of The Greatest American Hero television series did not infringe the studio's copyright on live-action depictions of Superman, observed that some of the tensions between the roles of similarities and differences in deciding whether infringement has occurred come from legal tests derived from literary works being used for other media.

In 1978's Franklin Mint Corp. v. National Wildlife Art Exchange, a case involving a claim similar to Mannion's where a painting was alleged to be so similar to a prior work as to be infringing, Judge Joseph F. Weis Jr. of the Third Circuit had found it:[24] Troublesome, too, is the fact that the same general principles are applied in claims involving plays, novels, sculpture, maps, directories of information, musical compositions, as well as artistic paintings.

Isolating the idea from the expression and determining the extent of copying required for unlawful appropriation necessarily depend to some degree on whether the subject matter is words or symbols written on paper, or paint brushed onto canvas.

"[18] For Kaplan, this led to the central quandary of the idea-expression divide in visual art: [A]t what point do the similarities between two photographs become sufficiently general that there will be no infringement even though actual copying has occurred?

While those were protected elements based on Kaplan's earlier analysis, he also had to take into account the differences, which he characterized as changes rather than additions: color in the original and black and white in the other, the angle at which the subject was posed, the absence of a head in the Coors image, and the jewelry and clothing not being exactly the same between the two.

He looked back to a 1987 Southern District case in which a photographer had also sued an advertising agency over a similar image to his, likewise created for a beverage ad.

Mannion believed that those amounts were based on an undercalculation of the revenue Coors had earned from the use of the infringing image in its ad and moved for judgement as a matter of law instead, or a retrial of the damages issue.

Looking to both Mannion and Bridgman, Judge Diane Sykes, writing for a unanimous panel, held that:[31][32] ... they do not fall into the narrow category of photographs that can be classified as "slavish copies," lacking any independently created expression.

To be sure, the photographs are accurate depictions of the three-dimensional "Thomas & Friends" toys, but Schrock's artistic and technical choices combine to create a two-dimensional image that is subtly but nonetheless sufficiently his own.In 2013 the First Circuit found Mannion "instructive" in helping it resolve Harney v. Sony Pictures Television.

[33] Back in the Southern District, Judge Shira Scheindlin also adopted Kaplan's standards of photographic originality in a 2011 finding that David LaChappelle's suit alleging infringement of his photos by Rihanna's video for "S&M", where he had like Mannion been involved at the early planning stages, should also be decided by a jury.

"[35] Five years later, Mannion helped another Southern District judge, Jed Rakoff, reach a contrary decision in another case involving a filmmaker claiming a pop star unlawfully appropriated their work in a video.

While finding that too broad and general to warrant protection by itself, Rakoff noted that Kaplan had, in Mannion, held the upward, right-facing view of Garnett to be original enough to be copyrightable in that image.

Finding it hard to begin with to understand how a 1,700-frame video could infringe a still image of Gordon's, Sullivan wrote that her extensive reliance on Mannion's holding that a photographer can copyright a subject they have created or orchestrated was misguided.

"[37] In 2020's Cruz v. Cox Media Group the defendant company tried to use Mannion to argue that the plaintiff photographer's image of Sayfullo Saipov being taken into custody on the streets of Lower Manhattan following the 2017 New York City truck attack lacked sufficient originality to be protectible.

"[38] Other courts have found Kaplan's observations about the difficulty of applying the idea-expression divide helpful in reaching decisions in similar cases involving infringement claims related to photography.

[39] Diodato sued Spade after its images for its marketing campaign a few months later included one also showing a woman's heeled feet with her panties above next to her handbag, taken from outside a closed bathroom stall door.

He argued against Spade's motion for summary judgement, citing the mix of similar and dissimilar elements that had been given to the jury to resolve in Mannion, but Chin distinguished the two cases, pointing to the many similar photographs Spade submitted into evidence predating either that were before the court, an issue not present in Mannion, one that made it clear that only Diodato's expression of a familiar idea could be protected:[40] Here, in contrast, the creation of the subject was not original to Diodato.

"[1] Kogan finds Kaplan's dismissal of the idea-expression divide in photography incompatible with the Supreme Court's holding in Feist that it applies to all works of potentially original authorship.

Accordingly, the idea/expression dichotomy can provide no justification for a court's chopping up a photograph into protected and unprotected pieces.Kogan pointed to Wallace Computer Services, Inc. v. Adams Business Forms, Inc., as a case where that was avoided and thus decided correctly.

In a 2022 NYU Law Review article, she argues the merger doctrine is not only compatible with photography, it needs to be revitalized and used not just in tests for infringement but as a threshold inquiry for copyrightability.