When Copying Isn't Infringement

Maule (the plaintiff) is a photographer who, in 2005, took the photograph of the Philadelphia skyline seen in the top image accompanying this post.  Maule digitally altered his photo by adding two buildings that, at the time, were planned but not yet constructed, and by changing the text on a billboard to say "Visit Philly Skyline Dot Com," a website he owned.  He called his work "Projected Skyline 2008."  The court's decision doesn't explain why Maule engaged in this sim-photography exercise; perhaps it was an effort to extend the commercial life of his photograph?  If so, Maule's efforts were thwarted by the whims of the real estate market because one of those buildings was never constructed.  As a result, Maule's photograph includes a "ghost" building that exists only in the architect's plans and, now, in Maule's photograph.