The color, shading and lighting gave the two pictures very different moods as well, Schwartz said. Kaplan's is somber, while Benvenuto's conveys adventure and curiosity, he explained. The Stock Market declined to comment. Nancy Wolff, the general counsel for the Picture Agency Council of America, says claims like Kaplan's come up frequently. It's very subjective.
Judges get a gut feeling, then form an opinion to support it.
She cautions against extrapolating the decision to other cases, though, since each one depends upon unique facts.