Mendler v. Winterland Prod.

• Decision Date: 14 March 2000
• Docket Number: No. 98-16061,98-16061
• Citation: 207 F.3d 1119
• Parties: (9th Cir. 2000) JEFFREY HUNTER MENDLER, dba Jeffrey Hunter, Plaintiff-Appellant, v. WINTERLAND PRODUCTION, LTD., a California Corporation; SAN DIEGO YACHT CLUB, a California Corporation, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1119

207 F.3d 1119 (9th Cir. 2000)

JEFFREY HUNTER MENDLER, dba Jeffrey Hunter, Plaintiff-Appellant, v. WINTERLAND PRODUCTION, LTD., a California Corporation; SAN DIEGO YACHT CLUB, a California Corporation, Defendants-Appellees.

No. 98-16061

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 11, 1999

Filed March 14, 2000

Jeffrey A. Berchenko, Berchenko & Korn, San Francisco, California, argued the cause for plaintiff-appellant Jeffrey Hunter Mendler. With him on the briefs was Alan Korn.

David M. Given, Phillips & Erlewine, San Francisco, California, argued the cause for defendants-appellees Winterl and Concessions Co. and San Diego Yacht Club. With him on the briefs was David C. Phillips.

Appeal from the United States District Court for the Northern District of California; Thelton E. Henderson, District Judge, Presiding. D.C. No. CV-96-02624-TEH

Before: Harlington Wood, Jr.,^* Alex Kozinski and Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Kozinski; Dissent by Judge Rymer

KOZINSKI, Circuit Judge:

In this case of contract interpretation we must answer the following riddle: When is a photograph no longer a photograph?

I

Jeffrey Mendler is a professional photographer. In August 1991 he signed a licensing agreement with Winterland, a manufacturer of screen-printed apparel. Pursuant to the agreement, Mendler provided Winterland with numerous slides of photographs he had taken of the America's Cup yacht race. Among these was an image titled "San Diego's America's Cup," which depicts the "Espana" overtaking the "Spirit of Australia" in a tacking duel. See Appendix. The license allowed Winterland the use of the photos as "guides, models, and examples, for illustrations to be used on screen printed T-shirts or other sportswear."

By 1992 Winterland had begun marketing T-shirts produced under this agreement. There were at least two different designs, each featuring drawings of two yachts with sails crossed, in a configuration modelled after Mendler's photo of the tacking duel. The drawings on these shirts are clearly identifiable as such, containing just enough detail to convey the desired image.¹ After receiving some samples of these T-shirts, Mendler had no further communication with Winterland for several years.

In 1995, Mendler learned that Winterland had put out a new line of America's Cup T-shirts. While depicting the same scene as the earlier series, these shirts were made using a very different technique. Instead of line drawings, the newer shirts display a digitally altered version of the image from Mendler's original photo. See Appendix. Mendler complained to Winterland that this use of his photo was not authorized by the licensing agreement. The ensuing negotiations failed. Mendler registered his photograph with the Register of Copyrights, and brought suit for copyright infringement and related claims against Winterland.²

The case was tried without a jury. The district court held for the defendants on the copyright claim, ruling that "Winterland's use of the slides was within the scope of the license agreements." Mendler appeals³.

II

Contract interpretation is a question of law we review de novo. See Confederated Tribes of Siletz Indians v. Oregon, 143 F.3d 481, 484 (9th Cir. 1998). While we are wont to defer when a district court relies on extrinsic evidence in interpreting an ambiguous contract, see L.K. Comstock & Co. v. United Eng'rs & Constructors Inc., 880 F.2d 219, 221 (9th Cir. 1989), the district court here made no findings of fact with regard to the copyright claim. We know neither how it interpreted the contract nor on what extrinsic evidence, if any, it relied in concluding that the T-shirt fell "within the scope of the license agreements." Faced with a naked conclusion of law, we have nothing to which to defer.

Nevertheless, our task of interpretation is reduced substantially, because the parties agree, to some extent, about the contract's meaning. Though they dispute what they meant by "illustrations," the parties agree that the contract did not authorize Winterland to use photographic reproductions of Mendler's work. Thus, in order to affirm the district court's ruling, we must conclude that the image on the T-shirt is not a photograph.

Winterland created the T-shirt image by scanning-digitally reproducing--the photo Mendler gave them. It is conceded that a reproduction created in this fashion is photographic.⁴ The case does not end here, however, because another term of the license gave Winterland the right to use "whatever illustration process" it found most appropriate. Winterland was thus allowed to make a scanned image, so long as it used the image only as a "guide[ ], model[ or] example[ ]" to achieve an end result that was an "illustration" and not a photographic reproduction. The question we must answer, then, is whether Winterland's subsequent electronic modifications transformed the scanned photograph into something that was no longer a photograph.

III

Winterland, no doubt, made noticeable alterations to the image from Mendler's original photo. The image was flipped horizontally, so that the vessel in the foreground is on the right rather than left. The sail of this craft, cut off by the frame in the original photo, has been extended and its missing tip reconstructed. A smooth background of gently gradated blue has replaced the original sky with its strata of white and grey clouds. Shades of brown have been changed to shades of violet, whites to fluorescent blues. At the same time, the tonal range of the whole image has been compressed through posterization⁵.

Winterland argues that these changes have transformed the image on the T-shirt from a photograph into an illustration based on a photograph. The dissent agrees, asserting that while the T-shirt image is "obviously based on the photograph, it is not the photograph." Infra, at 2040 (Rymer, J., dissenting). The only reason the dissent gives for this conclusion is that "Winterland's manipulation of the photograph was significant." Id. at 2940. But what does "significant" mean? The dissent leaves unexplained why the changes made are such as to destroy the original image's photographic quality. If we are to give our judgment content beyond "I know it when I see it," we must attempt to articulate what kinds of changes are "significant" enough to render an image non-photographic. The contract itself does not address this issue, and neither party argues that the concept "photographic" had any idiosyncratic meaning in the context of their business relationship. It is therefore appropriate to look to common usage and understanding, taking judicial notice of such materials as may aid us. See E. Allan Farnsworth, Contracts S 7.11 (1990) ("When interpreting contract language, courts start with the assumption that the parties have used the language in the way that reasonable persons ordinarily do."). The parties have participated in this inquiry, providing supplemental briefing that addresses such topics as the history of photography and the nature of the technology utilized here.

What distinguishes photography from other visual art forms is that, as the name implies, the light itself does the writing.⁶ The photographer can compose the shot, but once he triggers the shutter, anything visible to the eye is captured exactly as an observer would see it.⁷ The reactions of the exposed film, like the workings of one's own retina, are not subject to direct control. This fact gives rise to the two qualities we most associate with photographic images: lifelike appearance and objective accuracy. The former is why we like photographs so much--they're the next best thing to seeing something in the flesh. Indeed, the association is so close that an extremely realistic drawing or painting is often described as "photographic."⁸ The latter is why we trust photographs-since there's no willful agency intervening between the actual scene and its recording on the film, we tend to regard photographs as infallible and unimpeachable witnesses. We don't always trust the call of the live referee; but no one argues with the photo finish.

Of course, both of these characteristics of photography are subject to important caveats. While objective accuracy is a large part of what we mean by the term "photographic," we have also long been aware that photographs are not always to be trusted. The camera may not lie, but the person who develops the film or prints the image on paper can alter what it tells us.⁹ Even before the advent of computers, an airbrush or a strategically placed thumb during the printing process could be used to erase a facial blemish or eliminate a purged Bolshevik. Digital technology makes such alteration child's play, and most of the photographs we see in the media today have been digitally tweaked to get the exact image desired.¹⁰ Often important elements of the depicted scene are relocated, removed or replaced entirely with borrowed images. ¹¹ Even though we are (sometimes) aware that these doctored photographs no longer accurately depict reality,¹² we nevertheless perceive and identify the images as photographic¹³.

Nor does an image have to look perfectly lifelike to be recognized as photographic. This is most obvious with regard to color. A black and white photograph is unquestionably a photograph, even though it is dissimilar in an important respect from what we normally perceive. Similarly, a color negative doesn't lose its photographic quality when a black and white print is developed from it. This obvious truth isn't changed when, instead of removing colors, we change them. From hand-painted daguerreotypes to colorized oldies, we have always regarded images as photographic even though they contained coloring not derived from the original exposure¹⁴. Even an image whose overall chromatic appearance radically diverges from reality can be unquestionably photographic--as in the case of a...