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. 

"It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits" Justice Holmes, Bleinstein v. Donaldson(1903) Despite Court's reservation about being judges of aesthetics values which grants 2D art an authorship, great display of judicial activism by courts have been demonstrated since Burrow-Giles v. Sarony(1884), where the court has reshaped copyright law through "aesthetic" determinations that newly define originality and authorship in two dimensional art. As a result, couple issues are at stake. 1) The change in the norm and societal definition of originality and authorship in 2D art. 2) Should such qualitative (subjective) analysis be used, or new quantative standards of determining originality is needed? 3) Lack of consistency and coherency in court's decision over time, and no predictability; does it promote progress? The fundamental question arises: should courts be making aesthetic decisions? I will be focusing on judicial activism displayed in cases about authorship of 2-D art determining what is copyrightable, most importantly in photography. Looking through landmark cases starting with Burrow-Giles v. Sarony(1884) to as recent as Bridgman Art Library v. Corel Corp(1999), I will argue that court's lack of "quantitative standards" in determining originality of each work created inconsistency and failed to create a societal norm of authorship and originality in 2D art realm. I will propose that legislation is needed in which the government clearly defines consistent, more quantative standards to judge "originality" of a two dimensional art to determine its qualifications for copyright privilege.