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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.
tagged copyright judicial_activism law originality technology by hwayk ...on 05-DEC-06
Burrow-Giles Lithographic Company v. Sarony. 111 U.S. 53; 4 S. Ct. 279; 28 L. Ed. 349; 1884 U.S. LEXIS 1757
This landmark Supreme Court case rose about when Burrow-Giles lithographic company when Napoleon Sarony, a photographer of “Oscar Wilde No. 18,” sued the company for copyright infringement when it distributed lithographs of the photography without author’s consent and permission. The Company’s main argument was that photographs are products of a mechanical process, and is therefore not an art, and are not protected under article I, section 8, clause 8 of the United States Constitution—photographs are not produced under authorship as other means of art, such as writing and painting, are. Supreme Court concludes that Congress has the constitutional power to extend copyright protection to new emerging medium of expression, such as photography that represent “original intellectual conceptions” and “ his own genius and intellect.” The Court first argued that since Sarony included “Copyright, 1882, by N. Sarony,” at the corner of his photograph, it gave sufficient notice to the public of his exclusive right to the work. Secondly, although the Constitution does not include photographs under works of authorship in which are protected under copyright, it is only because the technology, when the statute was written in 1790, was not in existence. Providing the evidence that charts and maps were included under protection in Copyright Act of 1790, the court concludes that since photographs are a medium in which “idea of mind given a visible expression,” they also qualify under copyright protection under the constitution. Court goes further on, stating no ordinary photography of which “transferring to the plate the visible representation of some existing object” will not be given a copyright. Only photographs that are “useful, new, harmonious, characteristic, and graceful…entirely from his own original mental conception” and in effectively doing so—showcasing enough expression and originality to be granted such a protection. With this case, Supreme Court demonstrated a great activism in promoting and introducing new medium of expression to the culture. However, the last clause to the court’s argument, that a photograph must express sufficient originality according to court’s standard to be considered an art, creates a very subjective and aesthetic basis to which future photographic art/and recreations of the medium are to be judged. Words that were used by Justice Miller to describe an original photography are words conceptualized with different meanings according to every person’s mind and artistic taste. Law should be a concrete rule which should be understood and interpreted, to an extent, on a same level, and the aesthetics required by the court’s decision set minimal base to which people can agree on. This was the first real case in which the court’s decision in granting the copyright based entirely upon a subjective and aesthetic decision. I will argue the loosely set standards in the decision created inconsistency and unpredictability in future cases and did little to mold society a clear conception of photography as art.
tagged aesthetics authorship copyright judicial_activism law photography by hwayk ...on 03-DEC-06
