This section contains the nature of the case and procedural background.

P is a freelance photographer who specializes in portraits of celebrity athletes and musicians. In 1999 he was hired by SLAM, a basketball magazine, to photograph basketball star, Kevin Garnett. The article appeared and was accompanied by a number of P's photographs of Garnett, including the one at issue here. In early 2001, Carol H. Williams Advertising (D) began developing ideas for outdoor billboards that would advertise Coors Light beer to young black men in urban areas. D used a manipulated version of P’s Garnett Photograph and superimposed on it the words 'Iced Out' and a picture of a can of Coors Light beer. D obtained authorization from P's representative to use the Garnett Photograph for this purpose. D forwarded its comp boards to and solicited bids for the photograph for the Coors advertising from, various photographers including P, who submitted a bid but did not receive the assignment. The Coors Billboard depicts, in black-and-white, the torso of a muscular black man, albeit a model other than Garnett, shot against a cloudy backdrop. The pose is similar to that in the Garnett Photograph. The model on the billboard also wears a white T-shirt and white athletic pants. The model's jewelry is prominently depicted; it includes a necklace of platinum or gold and diamonds, a watch and two bracelets on the right wrist, and more bracelets on the left wrist. The light comes from the viewer's right so that the left shoulder is the brightest part of the photograph, and the right arm and hand-cast slight shadows on the trousers. D noticed the Coors Billboard and applied for registration of his copyright of the Garnett Photograph in 2003. P then brought this action for infringement in February of 2004. The registration was completed in May 2004. The parties each moved for summary judgment.

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