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. 

Abrams, H. "Originality and Creativity in Copyright Law" Law and Contemporary Problems © 1992 Duke University School of Law

            Abrams observe the change in the ways courts interpreted and used “originality” as a qualifying standard to test copyrightability of artworks, since Copyright Act of 1976 and the added clause of “original works of authorship.” Centering on the landmark decision of Feist v. Rural, he studies the development of originality standard before Feist, the implications of Feist opinion in defining “originality” once again, then looks at cases emerged after Feist to study the implications and applications of the decision.

In order for the standard to be applied, “originality” needs to be defined first. Abrams uses Justice Holmes’ opinion in Bleinstein v. Donaldson, to define originality as a “contribution of the author” rather than the “purpose” with which the work was created. Following the decision, standard of originality became about the “sweat of the brow,” about artist’s effort put in, with disregard to artistic or aesthetic merit.

Abrams marks Feist as the landmark decision that shifts meaning of originality from being about physical contribution to having “intellectual production, of thought, and conception.” The most important declaration of the decision is when court constitutionally mandates component of creativity as part of the requirement, which now is embedded in the Constitution. However, at the same time, Abrams recognize the challenge is to define what satisfies the minimum creativity required for copyright protection. He responds that minimum creativity is anything more than “placing an obvious grouping of data in a common and obvious format,” and more refined standards to be established by the future court.

Abrahams introduces series of cases after Feist decision, most notably Kregos v. Assoicated Press and BellSouth Advertising v. Donnelly Information Publishing, to illustrate that originality is no longer found in efforts measured by “time, expense, nor even in the vulnerability of competition,” but only in the final work that it is a work of some independent, original intent.

Abrams concludes on a positive note. The decision has, once and for, declared the importance in the expression of idea, more than the “sweat of the brow” in copyright law. He believes that Feist has made sure the abusive copyright claims on recompilations of facts and data, made so easily in light of emerging technology of today, by declaring a “meaningful minimum” in constitutional standard of original input.

While the paper does not directly argue about court’s aesthetic decisions on defining and shaping the meaning of originality, Abrams illustrates through Feist and one specific limit it has set on what is NOT copyrightable has helped provide precedence and clear standard for judges to follow. This goes on to support that, even with just one example that illustrate the line of bare minimum originality, the evaluation has become more consistent. Therefore, a definitive structure for evaluation of copyrightability will provide consistent jurisdiction that both the courts and public can follow.

http://williampatry.blogspot.com/2006/10/not-model-decision.html

William Patry presents the recent opinion from District of Utah, Meshwerks, Inc v. Toyota Motor Sales U.S.A. Inc—a case in which Meshwerks, hired to make computerized and animated 3D models Toyota cars for an ad campaign, sued the company for copyright infringement when the models were used without his consent. Meshwerks describes his models as a work of “the graphic sculptor” using new graphic technology. The process is not just mechanical, but creative as well; it requires the designer to sketch, from scratch, the 2D picture of a 3D object using the computer as a tool, like a brush for a painter. Therefore, he argues that no two models will ever be alike, for ultimately every design is a unique creation. In defense, Toyota argued that digital models are not entitled to copyright protection, because the purpose of the graphic tool is to create an exact replica and inherently lacks originality. The court declared “lack of a creative recasting of the Toyota vehicles” through its digital medium and therefore Mershwerk’s models are not protected under copyright law.

Patry, however, argues that the Court has failed to evaluate the case on the heart of matter, the issue of originality, but instead focused forming its opinion on technical process in which the models were produced. Patry argues that since Bleinstein v. Donaldson, “purpose is irrelevant,” or the intent in which the work is created: the only question in matter is whether original contribution exists or not in its final outcome. Patry argues that the fact that both the court and the defendant recognized that skill, technical know-how, and the creative process that is born from this technology in the creation of models should have been sufficient to grant Meshwerk’s models copyright protection; a creative input, also called original input, is required in creating the model. Patry uses past decisions on copyright protections of photography, particularly of SHL Imaging, Inc. v. Artisan House, Inc. to mirror the inconsistency of this decision with which Supreme Court has stated: “To be sure, the requisite level of creativity is extremely low, even a slight amount will suffice.” The determination of copyright protection with photography has been made completely on original input, judged by its aesthetic quality. Camera is also a medium that creates exact replicas of life in 2D, but the court has focused on “artistic choices” made by the photographer. Patry pinpoints that in this particular decision, the court focuses on the purpose of creating the models and since the digital technology attempts to create a real-life picture of the car, it lacks the “creative recasting,” ignoring the creative input required to create the model in the process. 

This entry forthright demonstrates the inconsistency that the loosely written and interpreted copyright law in the court. It allows room to argue that perhaps aesthetic qualities are too abstract to be good basis for determining copyright qualification.