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YOU
AND THE LAW
by Joel Hecker, Esq.
Exact Digital Model of Automobile Does Not Infringe
As you know, the copying of a work in another medium can constitute copyright infringement if the works are substantially similar and other relevant conditions are met. A recent case in the United States District Court for the District of Utah had occasion to rule on this subject.
The case, Meshwerks, Inc. v. Toyota Motor Sales and others, concerned the creation of three-dimensional digital models of Toyota vehicles which were intended to resemble the vehicles as closely as possible. The three-dimensional models were created through a process in which tape was placed in a grid pattern over each car and then, using an articulated arm measuring over six feet, each point was marked where the tape intersected. The distance between the points of intersection was then measured and inputted into a computer. Using these measurements as a guide, the computer software then created lines that formed a rough digital representation of the vehicles, resembling a wire frame model.
NOT COPYRIGHTABLE?
The plaintiff obtained copyright registration certificates for the models. The plaintiff then sued when the defendants used the digital models without authorization. The defendants brought a motion for summary judgment on the grounds that the digital models were not copyrightable.
Since the plaintiff had obtained a copyright registration, a presumption arose that the work in question was copyrightable. However, that presumption is rebuttable if evidence is presented sufficient to prove otherwise. The defendants therefore had the burden of proof in this matter.
The Court found that, although the plaintiff made many judgments that required both skill and technical know-how, and that those judgments may have even involved "creativity" as that word is commonly used, the digital models created were not original. The Court reached this decision based upon the fact that the digital models were intended to, and apparently did, correspond to exactly represent the Toyota vehicles. Since the digital models were exactly the same as the vehicles, there was, according to the Court, no "originality" and therefore, the models were not copyrightable.
The Court distinguished the case from the photography issues found in SHL Imaging, Inc. v. Artisan House, Inc., a New York District Court case from the year 2000 where that court held that product photographs of mirrored picture frames were entitled to copyright protection. The critical distinction between the two cases, according to the Court, was the lack of creative recasting of the Toyota vehicles. The photographer in SHL Imaging, Inc. introduced new creative elements that elevated his photographs beyond mere replication. The elements included lighting, contrast and other creative measures normally brought to a project by a photographer.
The case reinforces other court decisions which have treated photography differently from other mediums when analyzing the copying of subject matter from one medium to another. The nature of photography lends itself to the "creativity" and "originality" required to create new copyrightable material whereas other mediums can slavishly reproduce the original without introducing the creativity required to obtain copyrightability status.
The case is now on appeal to the Tenth Circuit Court of Appeals, so we may hear more about this next year.
My personal best wishes to all of you for a happy, healthy and prosperous New Year!
Attorney Joel L. Hecker lectures and writes extensively on issues of concern
to the photography industry. His office is located at Russo & Burke, 600
Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.
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