Ets-Hokin

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 *765 scenes a faire. We agree fully with the district court that such defenses were appropriately invoked.

Indeed, we held as much when this case was previously before this court. See Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir.2000). The facts and background of the case are contained in that opinion, and we repeat them here only as necessary.

In 1993, photographer Joshua Ets-Ho-kin took a series of photographs of Skyy^s iconic blue vodka bottle for use in a marketing campaign. Skyy later hired two other photographers to photograph the bottle and used these photographs in advertising and other marketing materials. In 1996, Ets-Hokin filed this action against Skyy alleging infringement of his copyrights in the 1993 photographs.

The district court originally granted summary…