Tuesday, June 17, 2008

A digital simulacrum is not creative enough to be copyrighted

In a decision entered today in Meshwerks, Inc. v. Toyotal Motor Sales, Inc., No. 06-422 (10th Cir. June 17, 2008)(pdf), the 10th Circuit Court of Appeals affirmed an order granting summary judgment and dismissing the copyright infringement case brought against Toyota by Meshwerks, which had created digital models of Toyota cars for use in Toyota's advertising. As the court explained, "[t]hese digital models have substantial advantages over the product photographs for which they substitute. With a few clicks of a computer mouse,the advertiser can change the color of the car, its surroundings, and even edit its physical dimensions to portray changes in vehicle styling; before this innovation, advertisers had to conduct new photo shoots of whole fleets of vehicles each time the manufacturer made even a small design change to a car or truck." Professor Patry strongly criticized the lower court's decision and will no doubt be unpersuaded by the 10th Circuit's affirmance. The court concluded, however, that the digital models did not have a sufficient degree of creativity to entitle them to copyright protection because
Meshwerks’ digital wireframe computer models depict Toyota’s vehicles without any individualizing features: they are untouched by a digital paintbrush; they are not depicted in front of a palm tree, whizzing down the open road, or climbing up a mountainside. Put another way, Meshwerks’ models depict nothing more than unadorned Toyota vehicles – the car as car. See Appendix A. And the unequivocal lesson from Feist is that works are not copyrightable to the extent they do not involve any expression apart from the raw facts in the world. As Professor Nimmer has commented in connection with the predecessor technology of photography, “[a]s applied to a photograph of a pre-existing product, thatbedrock principle [of originality] means that the photographer manifestly cannot claim to have originated the matter depicted therein . . . . The upshot is that the photographer is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.” Nimmer on Copyright § 3.03[C][3]. It seems to us that exactly the same holds true with the digital medium now before us: the facts in this case unambiguously show that Meshwerks did not make any decisions regarding lighting, shading, the background in front of which a vehicle would be posed, the angle at which to pose it, or the like – in short, its models reflect none of the decisions that can make depictions of things or facts in the world, whether Oscar Wilde or a Toyota Camry, new expressions subject to copyright protection.

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