Copyright Class 1 – Originality

Welcome to the first “day” of class. I hope that you find this series both interesting and informative. Please keep in mind the caveats I set forth last week. The first of those caveats, that this is a course focused on copyright generally and not copyright for writers, is fully applicable to today’s material. The issues explored in these cases, originality, is not usually an issue for writers.

Today’s class briefly covered the history of copyright from its birth in the Stationer’s Company of 15th century London and its use as a tool for religious censorship to the modern copyright of today as embodied in the Copyright Act of 1976. I will spare you that … for now.

We spent the majority of the class discussing what constitutes an “original work of authorship.” Section 102 of the copyright act says:

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression…

So, asking what is an “original work of authorship” is basically asking “What gets copyright protection?” Sure, there’s the “fixed in any tangible medium of expression” part, but that is not the difficult part to satisfy.

Accordingly, originality is often said to be “[t]he sine qua non of copyright.”

If you want the short answer, here it is. Originality includes two related concepts. First, the work must be original to the author; in other words, it cannot be copied from another. Second, it must contain at least a modicum of creativity. This is a fairly low hurdle.

We explored the first half of that this week and will look at the second half next week.

To explore that part of the concept of originality and get a better feel for its contours, we read four cases: Burrow Giles Lithographic Co. v. Sarony, Bleistein v. Donaldson Lithographing Co., Meshwerks v. Toyota Motor Sales U.S.A., and Gracen v. Bradford Exchange.

The first two, Burrow Giles and Bleistein, are historic cases from 1884 and 1903 respectively. The latter two are modern cases (2008 and 1983).

Burrow Giles Co. v. Sarony

A photographer, Sarony, sued the lithographer, Burrow Giles, for infringing the copyright in his photograph (titled Oscar Wilde, No. 18). At trial, a jury found that Burrow Giles had infringed Sarony’s rights and rendered $610 in damages. In challenging the result on appeal, Burrow Giles presented two arguments of note.

First, they argued that the constitution did not give Congress the power to enact a copyright statute that included copyright protection for photographs. Protection of copyright and patent subject matter is actually one of the specifically enumerated powers in Article I.

To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Burrow Giles argued that “writings” did not include photographs, that the copyright statute could not therefore cover photographs, and thus their copying of the photograph was not copyright infringement. However, since the first copyright act passed in 1790 was written by many of the same men who drafted the Constitution and included such media as charts and maps, the Court held that the word “writings” should not be limited to the literal meaning asserted by Burrow Giles.

Second, Burrow Giles argued that a photograph, unlike a painting or engraving, did not include an intellectual conception of an author; rather, a photograph was a mere mechanical reproduction of reality. Photographs therefore were not “original.” While the Court left open the possibility that some photographs might not contain sufficient originality to be copyrightable, the photograph in this case did contain sufficient originality.

[I]n regard to the photograph in question, that it is a ‘useful, new, harmonious, characteristic, and graceful picture, and that plaintiff made the same * * * entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.’

Bleistein v. Donaldson Lithographing Co.

Bleistein involved a lithographic company copying posters created to advertise a traveling circus. The printing of poster advertisements for traveling circuses was actually a pretty big industry in those days. I’m not kidding. Entertainment options were obviously a bit more limited at the end of the 19^th century.

The defendants argued first that advertisements were not protected by copyright and second that the posters were not sufficiently original because the artist who had painted the artwork was attempting to portray what the performers actually looked like.

Though both the trial court and the intermediate appellate court held that advertisements were not protected by copyright, the Supreme Court interpreted the statute more broadly so as to include works of authorship beyond the “fine arts.” Further, they said that it would be dangerous for judges only trained in law to pass aesthetic judgments about whether something was “art.”

With respect to the defendant’s originality argument, the Court said that:

It is obvious also that the plaintiff’s case is not affected by the fact, if it be one, that the pictures represent actual groups — visible things. They seem from the testimony to have been composed from hints or description, not from sight of a performance. But even if they had been drawn from the life, that fact would not deprive them of protection. The opposite proposition would mean that a portrait by Velasquez or Whistler was common property because others might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy. The copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible which is one man’s alone. That something he may copyright unless there is a restriction in the words of the act.

Meshwerks v. Toyota Motor Sales U.S.A.

Meshwerks created 3D digital models of Toyota cars to be used in advertising. They argued that they had only licensed Toyota to use the models they created in one television advertising. Therefore, when Toyota used the digital models in additional advertising, they went beyond the scope of copyright permissions Meshwerks had granted them.

Toyota argued in response that because the digital models were intended to be exact representations of their cars the models were not “original” in the copyright sense.

The case thus focused “on the question whether Meshwerks’ models qualify as independent creations, as opposed to copies of Toyota’s handiwork.”

The court said that this particular type of “art” was certainly capable of being original enough to gain copyright protection but that these particular digital models did not contain enough originality. They based that conclusion on both an assessment of the models themselves and their creators’ intent when making them.

Key to our evaluation of this case is the fact that Meshwerks’ digital wireframe computer models depict Toyota’s vehicles without any individualizing features: they are untouched by a digital paintbrush; they are not depicted in front of a palm tree, whizzing down the open road, or climbing up a mountainside. Put another way, Meshwerks’ models depict nothing more than unadorned Toyota vehicles – the car as car. And the unequivocal lesson from Feist is that works are not copyrightable to the extent they do not involve any expression apart from the raw facts in the world. As Professor Nimmer has commented in connection with the predecessor technology of photography, “[a]s applied to a photograph of a pre-existing product, that bedrock principle [of originality] means that the photographer manifestly cannot claim to have originated the matter depicted therein . . . . The upshot is that the photographer is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.” It seems to us that exactly the same holds true with the digital medium now before us: the facts in this case unambiguously show that Meshwerks did not make any decisions regarding lighting, shading, the background in front of which a vehicle would be posed, the angle at which to pose it, or the like – in short, its models reflect none of the decisions that can make depictions of things or facts in the world, whether Oscar Wilde or a Toyota Camry, new expressions subject to copyright protection.

The court acknowledged that the creation of the digital models had taken tremendous skill and required the investment of a great deal of work; however, labor and skill was not the measure of originality.

In the case before us, there is no doubt that transposing the physical appearances of Toyota’s vehicles from three dimensions to two, such that computer-screen images accurately reflect Toyota’s products, was labor intensive and required a great amount of skill. But because the end-results were unadorned images of Toyota’s vehicles, the appearances of which do not owe their origins to Meshwerks, we are unable to reward that skill, effort, and labor with copyright protection.

The court also said that authorial intent can also shed light on the originality, or lack thereof, contained in a work. Because Meshwerks had created the models with the intent of creating as exact a series of replicas as they could, the resultant works were not original.

Gracen v. Bradford Exchange

Gracen is both a strange and sad case. It is strange in that the level of originality required of the court for copyright protection seems much higher than that seen in most other cases. It is sad in that the artist not only lost the case but also suffered in other ways besides losing her quest to be paid. She lost her job, was maligned by the defendants, and never even got her original painting back.

With respect to originality, the case essentially leaves us with uncertainty about the standard of originality required for derivative works to receive copyright protection. Derivative works are works of authorship based on a pre-existing work. In this case, Gracen’s painting of Dorothy on the gold brick road was based on the images in the movie starring Judy Garland.

The court held that derivative works must contain more originality than non-derivative works to receive copyright protection, but it is unclear whether the court’s reasoning would be followed by other courts faced with different facts.