Two Photographers are in Court Over Images of Miniature Figurines on Fruit

Two photographers are facing off in court over their images showing two miniature golfers playing on the surface of a papaya fruit.

The copyright infringement lawsuit involves a collection of images taken by acclaimed fine art photographer Christopher Boffoli. Boffoli’s Big Appetites is a series of photographs that feature tiny, lifelike figurines staged on actual food. Big Appetites has reportedly been published in more than 100 countries and featured in major publications such as The New York Times and NPR.

According to a report by Vital Law, Boffoli sued photographer Laurie McCormick for selling two photographs on Amazon that allegedly copied from his own. One of McCormick’s photographs “The Big Banana” depicted nine miniature bicyclists riding down the side of a bunch of bananas. The other “Papaya Golf” featured two golfers putting on the surface of an open-faced papaya fruit.

McCormick moved to dismiss the lawsuit on the grounds that Boffoli did not adequately plead access or substantial similarity. In an opinion last month, in response to McCormick’s request to have the case thrown out, the U.S. District Court for the Southern District of California found that Boffoli had presented sufficient evidence at this stage to show that McCormick could have seen his work. Boffoli says that his images “reached worldwide recognition within the narrow field of miniature food photography — a group which [McCormick] has been a member of since 2011.”

However, despite this, the court dismissed Boffoli’s infringement claim over McCormick’s banana-themed photograph.

Papayas, Not Bananas

Vital Law reports that the District Court for the Southern District of California found that the photographer’s pair of images depicting miniature bicycle riders on the surface of bananas shared only “the general idea or concept” but not enough details to allow an infringement claim to stand. In Boffoli’s “Banana Racers,” the bananas are angled down, the scene is wide with a light purple background and strawberries, and multiple riders are shown. Meanwhile, in McCormick’s “The Big Banana,” the bananas point upward, the background is dark, and the view is close-up on a single rider. The court found that the banana-themed images weren’t substantially similar as a matter of law because nearly everything differed beyond the shared concept of “bikes on bananas.”

But while the banana-themed claim failed, the court says Boffoli’s lawsuit against McCormick over the papaya-themed photo can move forward. The court found that similarities in McCormick’s papaya photo went beyond the idea and into the expression, and that the minor differences between his and Boffoli’s images were “more indicative of deliberate copying rather than producing an image unmistakably different in material details.” The court says that McCormick’s “Papaya Trap” could be considered substantially similar to Boffoli’s “Papaya Golf” as both images showed “a golfer on a papaya with the papaya seeds depicting a golf obstacle,” with a single golfer near the seeds and a dark background. The differences between Boffoli’s and McCormick’s photos were minor: mainly “the number of golfers and the papaya’s slight change in position within the frame.”

Image credits: All photos via court documents.