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ETS-HOKIN v. SKYY SPIRITS, INC.

Nos. 01-17411, 02-15126.

323 F.3d 763 (2003)

Joshua ETS-HOKIN, Plaintiff-Appellant, v. SKYY SPIRITS INC., a Delaware corporation; Maurice Kanbar; Daniel Dadalt, aka Daniel Dadait, Defendants-Appellees, and John P. Benson; Unidigital-TX; Loretta J. Needham; Needham, Defendants. Joshua Ets-Hokin, Plaintiff-Appellee, v. Skyy Spirits Inc., a Delaware corporation; Maurice Kanbar, Defendants-Appellants, and Daniel Dadalt, aka Daniel Dadait; Needham, Defendants.

United States Court of Appeals, Ninth Circuit.

Filed March 14, 2003.

Attorney(s) appearing for the Case

Christopher C. Welch, Newport, RI, for the plaintiff-appellant-appellee.

James Wesley Kinnear, Holme Roberts & Owen, LLP, San Francisco, CA, for the defendants-appellees-appellants.

Before SCHROEDER, Chief Judge, GOODWIN and CLIFTON, Circuit Judges.

SCHROEDER, Chief Judge.

This long-running litigation is fundamentally about how many ways one can create an advertising photograph, called a "product shot," of a blue vodka bottle. We conclude there are not very many. We therefore affirm the district court's summary judgment because the allegedly infringing photographs are not "virtually identical" as required upon application of the defensive doctrines of merger and scenes...

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