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Latimer v. Roaring Toyz, Inc.

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[PUBLISH]

Before MARCUS, FAY and ANDERSON, Circuit Judges.

This appeal arises out of an intellectual property dispute between a professional photographer and multiple defendants regarding the distribution and publication of photographs of a customized motorcycle. Todd Latimer sued Kawasaki Motors Corp., U.S.A. (“Kawasaki”), Hachette Filipacchi Media U.S., Inc. (“Hachette”), Roaring Toyz, Inc. (“Roaring Toyz”), and Robert Fisher for copyright infringement and unfair competition, alleging that defendants copied and used his protected work without permission or authorization. Defendants maintain they were permitted to use the photographs and, as unauthorized derivative works, the photographs fail to qualify for copyright protection. The district court granted summary judgment to all defendants on the unfair competition claim and to Kawasaki and Hachette on the copyright infringement claims. The district court held that (1) Latimer’s unfair competition claim is preempted by the Copyright Act,*fn1 (2) the photographs are not unauthorized derivative works and thus they qualify for copyright protection, (3) Latimer granted Kawasaki an implied license to use the photographs in its press release materials, and (4) Hachette’s subsequent publication of the photographs was fair use. We affirm in part and reverse in part.

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