PHILADELPHIA – A federal court in Philadelphia has thrown out a copyright infringement lawsuit brought by a local photographer who claimed Anheuser Busch illegally copied his photo of the Philadelphia skyline when it created a neon sign advertising Budweiser.
On July 27, U.S. District Court for the Eastern District Court of Pennsylvania Judge Gerald J. Pappert dismissed a lawsuit brought by R. Bradley Maule of Philadelphia, against Anheuser Busch, LLC of St. Louis and Everbrite, LLC of Greenfield, Wis.
Maule says that in May 2005, he took a photograph of the Philadelphia skyline from the 18th Floor of the now-demolished Penn Tower Hotel in West Philadelphia – a wide-angle color photo depicting Center City as the sun is setting, highlighting light and shadows on the skyline’s buildings in addition to Franklin Field, Penn Park, the Schuylkill Expressway and the Schuylkill River.
After taking the photo, Maule digitally altered it by inserting the later-constructed Comcast Center and another building that turned out not to ever be built, Mandeville Place, and further altered a billboard to read, “Visit Philly Skyline Dot Com," a website he owned.
Maule says he named the photograph “Projected Skyline 2008," posted it on his website and registered the photo with the United States Copyright Office on May 13, 2008.
Subsequently, he saw the defendants’ neon Budweiser sign in the window of the Spruce Street Market on Sept. 27, 2015 – a less-condensed, less-detailed rendering of the Philadelphia skyline without a background, but showing the same buildings in the skyline as Maule’s photo, he claims.
As the sign also includes Mandeville Place, a building that never came to fruition, he believes the defendants copied his photograph and used it a reference for the design of their Budweiser sign, which Maule says appeared in more than 20 locations in Philadelphia.
For counts of copyright infringement and violation of the Digital Millennium Copyright Act (DMCA), Maule sought $150,000 for each unauthorized use of his photo, or $3 million, plus compensatory and statutory damages, defendants’ profits, interests, costs, attorney’s fees and such other relief as the Court deems appropriate.
Pappert explained that Maule could only prove copyright infringement if he could show that he possessed ownership of a valid copyright connected to the photo and unauthorized copying of original elements of his photo, making the two works substantially-similar.
“Maule cites three aspects of his picture the defendants allegedly copied: (1) The “Visit Philly Dot Com” sign; (2) Buildings in the Philadelphia skyline; and (3) The non-existent Mandeville Place. First of all, the digitally enhanced Visit Philly Dot Com billboard is not even in the Budweiser sign and provides no support for Maule’s claim. Second, the Philadelphia skyline cannot be copyrighted. Components of a work that exist in the public domain (including existing buildings) are unoriginal and unprotected by copyright law,” Pappert said.
“With the exception of the depiction of Mandeville Place, the Philadelphia skyline shown in the advertising sign is unoriginal to Maule and exists independently of any photograph. Because all of the buildings in the skyline, with the exception of Mandeville Place, are not protected by copyright law, the defendants were free to use that skyline in their sign without infringing on Maule’s photograph.”
While Pappert conceded the inclusion of Mandeville Place was a substantial similarity between the two works, their differences dwarfed this same similarity.
“No ordinary observer would overlook the fact that Maule’s depiction of Mandeville Place is very detailed and realistic, created to fit in with the other actual buildings in Center City. In contrast, the sign does not attempt to realistically and accurately depict Mandeville Place; like the other buildings portrayed, it is a red, cartoon-like illustration with black lines delineating the floors, windows and outline of the structure,” Pappert stated.
Pappert also pointed to key differences between the scale, depth, highlighting and shadows of the two works as contradictory to Maule’s copyright infringement claim.
“Maule believes that the inclusion of Mandeville Place in the Budweiser sign shows that the defendants copied his photograph. Crediting that belief, however, ‘not all copying…is copyright infringement.’ Despite some similarities, most of which relate to non-copyrightable aspects of Maule’s photograph, no reasonable juror could find that the defendants’ sign is substantially similar to the protected elements of Maule’s photograph or find that both works share the same aesthetic appeal,” Pappert said.
As to the defendants’ multiple DMCA violations alleged by Maule, Pappert said they did not circumvent technological measures meant to prevent improper access to copyrighted work or provide false copyright management information through their digital alteration of Maule’s original image.
Pappert concluded as the lawsuit was already amended twice, was not sought to be amended a third time and further amendment would be futile, he dismissed Maule’s lawsuit.
The plaintiff is represented by J. Conor Corcoran of J. Conor Corcoran Law, in Philadelphia.
The defendants are represented by David J. Shannon of Marshall Dennehey Warner Coleman & Goggin in Philadelphia, plus Bobby A. Ghajar and Marcus Peterson of Cooley, LLP in Santa Monica, Calif.
U.S. District Court for the Eastern District of Pennsylvania case 2:17-cv-00461
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com