subscribe to this page
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
BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)
The case rises about when the Library sues Corel Corp, a company which makes photographic copies of famous artworks from museums, works which are already in public domain, sued Corel Corps for using digital images of these arts in their CD-Rom without compensation and sued the corporation for copyright infringement. The court was now faced with reinterpreting the loosely written “originality requirement” set during Burrow-Giles Lithographic Co v. Sarony in l884 and reshape the copyright clause of the constitution. Bridgeman points out in its argument the special techniques and extra effort and time which has put into reproducing the artworks as precisely and accurately as it can, but it further points to the fact while the copying of the artworks require a great deal of admirable skills, they are not of original merit and does not have artistic values that give them the right to copyright protection. Judge Kaplan puts it, “sweat of the brow” vs. “creative spark.” While the techniques and skills are valuable assets, they are not characteristics of creative of which, the case defines as “elements of originality… may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression…” These “elements” described in the case are not to be developed through training and effort, the way techniques require to make a perfect copy of a painting would, but requires a natural talent to capture creative moment on the two dimensional space. Because the works under question adamantly lack “distinguishable variation” and original input from the actual work that is being reproduced, no copyright protection can be granted.
Ultimately, Bridgeman v. Corel Corp ruled that two dimensional photographic reproductions of art already in the public domain were not copyrightable because the reproduction process of the art involved zero originality, which does not merit them the copyright production enjoyed by original works of photography.
This case provides a great support to the case because the case directly recognizes the lack of structure of the Sarony case and faces the difficulty of its broad definition by placing more aesthetic requirements for copyright protection. The case pinpoints to the public that originality that come from art is a matter of talent, not in the skills and efforts put into it. But the word talent is a very subjective and elusive term, as its meaning changes with societal perception and preferences. To base a legal clause on an intangible term fails to create a concrete standard for the society. Also, words used such as “distinguishable variation” and “creative spark” to describe works of original art create clear boundaries that we come to expect from the law. Observing from previous cases, it is apparent that no clear precedent was formed from one case to another, but the court created new aesthetic definitions of “original work of art” through case-by-case studies. Aesthetic decisions have created inconsistency and lack of predictability in copyright law.
