ETS-HOKIN v. SKYY, a decision centering on photographs of Skyy vodka used for advertisement, raises key factors in judging copyrightability of the work. First, is the photograph an original, or a derivative artwork? Secondly, which originality requirement should be applied? The difference in the answer to part one cost a photograph a copyright protection.

The case was brought to motion when Ets-Hopkin, who was hired by Skyy to photograph the vodka bottle for their advertisement campaigned, sued the company for copyright infringement when the Skyy Inc. used his image in various advertisements under limited license without his consent. Also, he argued that other photographers who photographed the vodka for the campaign had copied his photos, virtually producing identical images. The company argued in defense that the plaintiff’s photograph is not subject to copyright protection, since the work is a derivative work of Skyy’s signature vodka bottle itself. The district court has concluded that the photography was in fact a derivative work, since Skyy vodka bottle, from the color, font, to the label, is a “pre-existing work.” Since the photograph was a derivative work, the “substantial originality” clause was used to evaluate copyrightability of the photo. The court ruled that photos were “insufficiently original” and denied photos’ copyright protection.

However, the Court of Appeals concluded differently. The court declared Ets-Hopkin’s photos original work of art. The argument to consider vodka bottle as a work of art, was not subject to copyright because the bottle was driven mainly by function, and could not be protected by copyright law as a result. The court recognized that the label might have been protected by copyright, but it was ruled to be incidental part of the photograph, not a substantial part. Since the first work of art, especially photography, only require “minimal amount of originality” by the Copyright Act, the court stated that the photography demonstrated sufficient creativity and granted the photograph copyright protection, but the issue of infringement was not settled in the case.

This case is a fascinating study of how one subjective of thought, in this case in what the court believes to a derivative work, can influence so far as being the key determining factor in granting copyright protection for a work. Especially by the weight of value that comes from copyright monopoly, there is a need for a more rigid standard to match the gravity of power granted by copyright law. 

Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)

 

The Supreme Court case, Feist Publications, Inc, v. Rural Telephone Service shows two arguments on issues of copyrighting facts. The case emerged when Feist Publication included numbers from Rural Telephone Service to be included in their own telephone book when Rural refused to share the information, and Rural sued for copyright infringement. The two main arguments are presented: one states that fact alone cannot be copyrighted, but compilations of facts can be considered an artistic input; therefore, the expression of fact in a "collection of words" can be copyrighted. However, the compilation of facts require a minimum degree of originality, and since copyright law only applies to creative aspects of the two dimensional work, a list of A-Z phonebook does not satisfy enough creativity or artistic merit to be qualified for copyright protection.

The Court ruled that Rural's listings did not meet the standards for “minimum creativity” and that the use of the listings did not constitute infringement. This decision emphasizes that copyright only extends protection to originality, not the amount of effort put into the creation of an artwork.

This recent case showcases a judicial activism in which the court uses aesthetic qualities to judge whether this particular compilation of facts, via phonebook, is under copyright protection. However, this decision complicates my argument greatly. Under Bleistein v. Donaldson, any artwork of a value should be granted copyright. Looking at the monetary value that the phonebook contains, the copyright should be granted, however its evidently low artistic value disqualifies the work of any copyright infringement. What is the minimum balance of artistic/tangible value that would grant a two dimensional artwork a copyright protection? Also, the case brings up demonstration of minimal originality as part of the qualification. The court only so far answers the question by saying that listing of facts is not providing enough creativity. Where does the line lie for minimal creativity? Aesthetic determination of the work seemed crucial in this case, for if the copyright was granted, the value of art in current society will diminish because creation of artwork has become so effortless and widespread, but perhaps it was because no clear quantitative standard to judging “minimum originality” was set by the legislature or the judiciary. The case weighs in on the necessity of aesthetic decision to promote progress, but also demonstrates that while aesthetic decision is good for case-by-case studies, it shows that lack of quantitative standards created inconsistency in what society has perceived as norms and requirements for a copyright protection over time.

 

 

"It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits" Justice Holmes, Bleinstein v. Donaldson(1903) Despite Court's reservation about being judges of aesthetics values which grants 2D art an authorship, great display of judicial activism by courts have been demonstrated since Burrow-Giles v. Sarony(1884), where the court has reshaped copyright law through "aesthetic" determinations that newly define originality and authorship in two dimensional art. As a result, couple issues are at stake. 1) The change in the norm and societal definition of originality and authorship in 2D art. 2) Should such qualitative (subjective) analysis be used, or new quantative standards of determining originality is needed? 3) Lack of consistency and coherency in court's decision over time, and no predictability; does it promote progress? The fundamental question arises: should courts be making aesthetic decisions? I will be focusing on judicial activism displayed in cases about authorship of 2-D art determining what is copyrightable, most importantly in photography. Looking through landmark cases starting with Burrow-Giles v. Sarony(1884) to as recent as Bridgman Art Library v. Corel Corp(1999), I will argue that court's lack of "quantitative standards" in determining originality of each work created inconsistency and failed to create a societal norm of authorship and originality in 2D art realm. I will propose that legislation is needed in which the government clearly defines consistent, more quantative standards to judge "originality" of a two dimensional art to determine its qualifications for copyright privilege.