Re: Photographing purchased objects

[Bryan Carson <bryan.m.carson@xxxxxxxxx>]

I'm going to both agree and disagree. First, I agree with Kevin's 
statement that
> There are a couple of items we need to distinguish here:
> a) 3-D models of real bones
> b) the original photographs of the 3-D models
> c) handouts of the photographs 
That sounds like a good summary of the issues. Second, I agree with the 
following statement:
> First of all, non-textual works like photographs, paintings, and 
> architectural plans are eligible for copyright protection.  The 
> question is the extent of the creativity involved in creating them. 
I was sloppy in my initial statement that the bones are "not writing," 
which incorrectly implied that only "writing" is protected. 
(Unacceptably sloppy.) Needless to say, 17 U.S.C. ' 102 applies 
copyright to the following types of items:
> (1) literary works;
> (2) musical works, including any accompanying words;
> (3) dramatic works, including any accompanying music;
> (4) pantomimes and choreographic works;
> (5) pictorial, graphic, and sculptural works;
> (6) motion pictures and other audiovisual works;
> (7) sound recordings; and
> (8) architectural works.
However, I do not agree that the bones would be protected by copyright 
because they do not fit within any of these categories. Models can be 
protected, but not if they are factual (which these clearly are) and do 
not exhibit creativity. That is why I don't believe that the bones are 
subject to copyright. (On the other hand, if they were bones of an alien 
from Mars. . . .)

Finally, by coincidence today I read about a 7th Circuit case last week 
that discussed photographs of three-dimensional objects, indicating that 
there is "deep disagreement" over whether the photographs are themselves 
derivative work. The case was Daniel Schrock, et al. v. Learning Curve 
International, et al., 2009 U.S. App. LEXIS 24253; 92 U.S.P.Q.2D (BNA) 
1694; Copy. L. Rep. (CCH) P29,833 (November 5, 2009). It had the 
following language:
>  Whether photographs of a copyrighted work are derivative works is the 
> subject of deep disagreement among courts and commentators alike. See 
> 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT ' 3.03[C][1], 
> at 3-20.3 (Aug. 2009). The district court held that Schrock's photos 
> came within the definition of derivative works because they "recast, 
> transformed, or adapted" the three-dimensional toys into a different, 
> two-dimensional medium. For this conclusion the judge relied in part 
> on language in Gracen and in the Ninth Circuit's decision in Ets-Hokin 
> v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000), recognizing, 
> however, that neither decision directly decided the matter. Gracen did 
> not involve photographs at all, and although Ets-Hokin did, the Ninth 
> Circuit ultimately sidestepped the derivative-works question and 
> rested its decision on other grounds. Id. at 1081.
>
> The judge also cited other decisions in this circuit that appear to 
> support the conclusion that photographs are derivative works, but 
> these, too (and again, as the judge properly acknowledged), did not 
> directly address the question. Ty, Inc. v. Publ'ns Int'l., 292 F.3d 
> 512, 519 (7th Cir. 2002), involved unauthorized "Beanie Babies" 
> collector's guides that incorporated photographs of the popular 
> beanbag plush toys into the text. We said there that "photographs of 
> Beanie Babies are derivative works from the copyrighted Beanie Babies 
> themselves," but this statement was based entirely on the parties' 
> concession that the photographs were derivative works. Id. Saturday 
> Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191 (7th Cir. 
> 1987), made a passing remark suggesting that photographs of Norman 
> Rockwell illustrations were derivative works, but that was not an 
> issue in the case, id. at 1201; the issue instead was whether certain 
> terms in a licensing agreement (specifically, no-contest and 
> arbitration clauses) were enforceable, id. at 1193.
I haven't tracked down the the citations in the opinion (in my copious 
lack-of-spare-time), but this may be an interesting line of inquiry to 
pursue.

Bryan

--
Bryan M. Carson, J.D., M.I.L.S., Ed.D.
Special Assistant to the Dean for Grants & Projects/ Coordinator of Reference
& Instructional Services Western Kentucky University Libraries Author, "The
Law of Libraries and Archives" (Scarecrow Press)

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