FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY HUNTER MENDLER, dba
Jeffrey Hunter,
Plaintiff-Appellant,
                                                     No. 98-16061
v.
                                                     D.C. No.
WINTERLAND PRODUCTION, LTD., a
                                                     CV-96-02624-TEH
California Corporation; SAN DIEGO
                                                     OPINION
YACHT CLUB, a California
Corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
Argued and Submitted
May 11, 1999--San Francisco, California
Filed March 14, 2000
Before: Harlington Wood, Jr.,* Alex Kozinski and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Kozinski;
Dissent by Judge Rymer
_________________________________________________________________
*The Honorable Harlington Wood, Jr., Senior Circuit Judge for the
United States Court of Appeals for the Seventh Circuit, sitting by designa-
tion.
                               2925
 

COUNSEL
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, Califor-
nia, argued the cause for defendants-appellees Winterland
Concessions Co. and San Diego Yacht Club. With him on the
briefs was David C. Phillips.
_________________________________________________________________
OPINION
KOZINSKI, Circuit Judge:
In this case of contract interpretation we must answer the
following riddle: When is a photograph no longer a photo-
graph?
I
Jeffrey Mendler is a professional photographer. In August
1991 he signed a licensing agreement with Winterland, a
                               2928

manufacturer of screen-printed apparel. Pursuant to the agree-
ment, 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 screenprinted
T-shirts or other sportswear."
By 1992 Winterland had begun marketing T-shirts pro-
duced 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 Winter-
land 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 Copy-
_________________________________________________________________
1 One of these drawings contained only bare abstract outlines of the two
boats, placed in front of a background that appears to be a photographic
image of ocean water. Another version adds more detail to the sails and
hulls of the boats, including some silhouetted human figures. Instead of a
solid background of water, there are some cartoon-style waves drawn
around the bottom of each boat.
                               2929

rights, 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 appeals.3
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 interpret-
ing 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 substan-
tially, 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.
_________________________________________________________________
2 The complaint also named the San Diego Yacht Club, which had
hosted the America's Cup in 1995, and licensed its logo for use on the
apparel in question.
3 The court also ruled against Mendler on his conversion and negligence
claims. It found for Mendler on his breach of contract claim for failure to
return the slides, but awarded only nominal damages. Mendler appeals
only the copyright ruling.
                               2930

[1] 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 some-
thing 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
_________________________________________________________________
4 As indeed it must be, in an age when memory cards and LCD displays
are quickly replacing silver nitrate and darkrooms. Indeed, the history of
photography features many methods of capturing images, and everything
from egg-white to raspberry syrup has been used to facilitate the process.
See entries for Albumen process and Collodion process in Robert Leggat,
A History of Photography from its beginnings till the 1920s (1999)
http://www.kbnet.co.uk/rleggat/photo>. It is not the precise method used
that makes something a photograph, but the fact that the image is created
by light reflected from the image one wishes to reproduce. See note 6
infra. That the light source is a scanner and the storage medium is electric
rather than mechanical or chemical is of no consequence.
                               2931

range of the whole image has been compressed through
posterization.5
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 photo-
graph, it is not the photograph." Infra, at 2040 (Rymer, J., dis-
senting). 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 mate-
rials 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 photogra-
phy and the nature of the technology utilized here.
[2] 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
_________________________________________________________________
5 "The Posterize command lets you specify the number of tonal levels
(or brightness values) for each channel in an image and then maps pixels
to the closest matching level." Adobe Systems, Inc., Adobe Photoshop 5.0
User Guide (1998) 132.
6 Cf. Webster's Ninth New Collegiate Dictionary 885 (1985) (defining
"photography" as "the art or process of producing images on a sensitized
surface (as a film) by the action of radiant energy and esp. light").
                               2932

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 quali-
ties 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 photo-
graphs as infallible and unimpeachable witnesses. We don't
always trust the call of the live referee; but no one argues with
the photo finish.
[3] 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 devel-
ops 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 Bol-
shevik. Digital technology makes such alteration child's play,
_________________________________________________________________
7 Cf. Susan Sontag, On Photography 132-33 (1977) ("In most uses of the
camera, the photograph's naive or descriptive function is paramount.")
8 See Webster's, supra note 6, at 885 (defining "photographic" as
"representing nature and human beings with the exactness of a
photograph"); The American Heritage Dictionary 987 (1976)
("representing or simulating something with great accuracy and fidelity of
detail.").
9 Even such an austere purist as Ansel Adams was apparently not above
a little darkroom legerdemain. See Kenneth Brower, Photography in the
Age of Falsification, The Atlantic Monthly, May 1998, at 92, 95 (describ-
ing Adams's deletion of unwanted details and use of the "dodge and burn"
technique to lighten selected areas of a print).
                               2933

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 photo-
graphs no longer accurately depict reality,12 we nevertheless
perceive and identify the images as photographic. 13
_________________________________________________________________
10 See, e.g., Stuart Wavell, Exposed: The cameras' white lies, The Sun-
day Times (London), June 27, 1999, at 14 ("One broadsheet picture editor
admitted that up to 90% of photographs are now digitally enhanced or
manipulated.").
11 In fact, there is now a cottage industry dedicated to helping people
improve their family photos by sending that better-forgotten ex-spouse
down the oubliette of history. Or better yet, you can insert yourself into
an old snapshot in place of your boyfriend's ex-girlfriend. See Wavell,
note 10 supra. See also Art Golab, Picture Perfect? Don't Be So Sure,
Chicago Sun-Times, Mar. 3, 1996, at 32. Consumer Stalinism, one might
call it.
12 Presumably few were fooled when actor Leslie Nielsen's head was
superimposed on the body of a nude pregnant woman imitating Demi
Moore's notorious Vanity Fair pose. See Leibowitz v. Paramount Pictures
Corp., 137 F.3d 109 (2d Cir. 1998) (holding that this was a parody cov-
ered by fair use). The same may not have been true when the Harvard
Lampoon attached the head of Henry Kissenger to the body of an
unknown muscle-man for the centerfold of its 1972 Cosmopolitan parody.
Indeed, there are apparently many willing to suspend disbelief when the
composite image is of something they'd like to see. See, e.g., Melissa
Grego, Skin Trade, The Hollywood Reporter, March 3-9, 1998, at 16
(describing the thriving business in nude images featuring the superim-
posed heads of celebrities). For expert dissection of such images, see The
Fake Detective http://lairofluxlucre.com/detective/index.html>.
13 Indeed, our instinctive tendency to assume that such images accurately
reflect reality has led to no little ethical hand-wringing among journalists
and nature photographers. See, e.g., Mitchell Stephens, Digital Wizards
and Composite Reality, Chronicle of Higher Education, January 9, 1998,
at B9 (describing the "journalistic battles" over use of altered photos,
including the proposal that a symbol of a camera with a slash through it
be displayed whenever a photo has been digitally altered); Brower, note
9 supra (describing similar conflicts among nature photographers).
                               2934

[4] 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 exposure.14
Even an image whose overall chromatic appearance radically
diverges from reality can be unquestionably photographic--as
in the case of a negative print.
[5] Thus, while lifelike appearance and faithful detail are
the hallmarks of the photograph, an image can contain signifi-
cant deviations in both respects while still remaining photo-
graphic. At the same time, an image may be extremely
accurate and lifelike without being a photograph at all. A
skilled artist can draw or paint an image that looks as real as
a photograph--or even more so. Had Winterland engaged
such an artist to create an image modeled after Mendler's
photo, it would have stayed within the terms of its license, no
matter how lifelike or how similar to the original the image
looked. This doesn't help Winterland, however, for we know
that whatever photographic elements remain in the T-shirt
image were not created by Winterland's artistry--they were
captured mechanically in the chamber of Mendler's camera.
Unlike a painting, where every detail successfully reproduced
on the canvas is a triumph of the artist, here every detail that
tracks the original represents the extent to which Winterland
created nothing.
_________________________________________________________________
14 Indeed, the adding of color to selected elements of a photograph is a
commonly-used technique in magazines and other print media. See, e.g.,
Michael Bane, Circuit Rider, Snow Country, October 1996 at 39, 39 (fea-
turing a photo by Dave Nagel of a snowboarder with greenish hair and a
bright pink tongue).
                               2935

[6] The contract did authorize Winterland to select the
illustration process pursuant to which it used Mendler's pho-
tographs "as guides, models, [or] examples. " Winterland was
thus within its rights in choosing to make its illustration by
scanning Mendler's photograph and using computer software
to digitally alter it to create an "illustration. " In choosing this
method rather than reconstructing the image from scratch,
however, Winterland necessarily took on a burden of altering
the image sufficiently so it would no longer exhibit those
qualities that cause us to recognize it as a photograph. This
must be so, for if the use of a photographic process to reach
a recognizably photographic result is authorized, the parties'
avowed understanding that photographic reproductions are
not "illustrations" becomes meaningless.
IV
[7] Viewing the problem through this lens, we conclude
that the alterations made by Winterland failed to destroy the
essentially photographic quality of the image on its T-shirt.
Were this question to hinge solely on the appearance of the
T-shirt image when viewed alone, the case might be a close
one. Changes in color alone do not render an image any less
photographic, but here the addition of posterization has pro-
duced an effect such that at first glance it is unclear how the
image was created. The question, however, is not whether the
T-shirt image is readily recognizable as a photograph standing
alone. To evaluate the degree of accurate, lifelike detail an
image contains, we must necessarily compare it to the origi-
nal. See Appendix.
[8] Once we do this, all doubts disappear. The precise
shapes of the two boats, their positions in the water, their spa-
tial relationship to each other--all remain perfectly distinct
and (apart from the horizontal flip) identical to the original.
Though somewhat washed out by the posterization, even most
of the finer details of the original photo--the stitching and
insignia in the sails, the positions of the crew members, the
                               2936

reflection of a boat in the sun-dappled water--remain visible
and unaltered. The smoothing out of the background and
reconstruction of the sail tip are within the range of cosmetic
retouching we see in media photographs every day. Apart
from the sail tip, none of the elements of the T-shirt image
that can be said to "illustrate" anything were added by
Winterland--they were simply scanned from Mendler's
photo. Despite the differences in appearance, no one familiar
with the original can fail to recognize this.15 The T-shirt image
thus remains essentially what it was the moment it was trans-
ferred from Mendler's slide to the hard drive of Winterland's
computer: a photographic reproduction. It is now a filtered,
posterized reproduction--but photographic nonetheless.
[9] As we find that Winterland's use of the photo exceeds
the terms of the license, it was an unauthorized use and there-
fore infringes Mendler's copyright. We REVERSE and
REMAND for a determination of damages.
_________________________________________________________________
15 Indeed, Mendler received a complaint from someone who had pur-
chased a limited edition of his photo and was disturbed to see it mass
reproduced in this manner.
                               2937

APPENDIX

                               2938

RYMER, Circuit Judge, dissenting:
The real riddle in this case is: When is a record no longer
a record?
The majority opinion cites no fewer than two web sites, one
computer software user's guide, one book, two dictionary def-
initions, and six newspaper or magazine articles -- none of
which was referred to, introduced, validated, used or argued
in the district court or to us. While it makes for interesting
reading, I have no idea whether the parties' intent was shaped
by the existence of a "cottage industry dedicated to helping
people improve their family photos by sending that better-
forgotten ex-spouse down the oubliette of history, " much less
colorized pictures of snowboarders with green hair and bright
pink tongues. These things were not in the record, and I don't
even know whether they existed at all when the contract was
formed in 1991. In any event, these data are not the usual stuff
of contract interpretation.
I would instead use more conventional tools to ascertain
what the parties meant when they allowed Winterland to
make "illustrations." See Cal. Civil Code SS 1636, 1647; City
of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
80 Cal. Rptr. 2d 329, 349 (Ct. App. 1999). Hunter argues that
the scope of the copyright license was limited to "cartoon-
style" or "graphic" illustrations. He also contends that the par-
ties did not intend for Winterland to use computer-scanned
images of his photographs. I don't agree. While it is clear that
the parties intended the term "illustrations" to be limited to
"graphic" illustrations (thereby excluding photographic repro-
ductions), the evidence does not support Hunter's further lim-
itation to "cartoon-style" illustrations. Nor does it support the
exclusion of computer-scanned images as "guides, models,
and examples" for computer-created artwork. The contract
allows Winterland to "use whatever illustration process it
finds most appropriate." Winterland had the technology
(albeit less sophisticated) to scan and manipulate images at
                               2939

the time of the contract; thus, this case is distinguishable from
Cohen v. Paramount Pictures Corp., 845 F.2d 851, 854 (9th
Cir. 1988), in which the relevant technology, home videocas-
sette recorders, did not exist in any form at the time of the
contract. Further, Winterland could have used the same tech-
nology to produce simple line drawings that Hunter admits
are within the scope of the license.
As I see it the issue is not "when does a photograph stop
being a photograph," rather it is whether this particular
digitally-scanned and manipulated image is within the scope
of the license. Having reviewed the record and exhibits, I am
not firmly convinced that the district court erred in finding
that the "Cross Sails" image is within the scope of the license.
Winterland's manipulation of the photograph was significant.
It was flipped horizontally, one sail was elongated, colors
were changed dramatically, the sky was redrawn, and it was
posterized in such a way as to destroy and compress tonality.
While the resulting image is obviously based on the photo-
graph, it is not the photograph. Rather, the photograph was
used as a guide or model to produce a graphic illustration of
sailing.
Given that Winterland did not infringe upon Hunter's
license, I do not believe that the district court erred in finding
that the San Diego Yacht Club was not liable for infringe-
ment. I would, therefore, affirm.
                               2940
 

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