Beruflich Dokumente
Kultur Dokumente
Michael Palumbo
Abstract: Copyright encourages progress in the useful arts by securing
certain exclusive rights to authors, thereby providing an economic incentive
for intellectual endeavors. The United States is the worlds largest exporter
of copyrighted material. As such, it is crucial for U.S. copyright law to
remain on the cutting edge of technological innovation so as to protect this
vital economic interest. In order to ensure this objective is achieved, courts
must remain constantly aware of the underlying policies for protecting
intellectual property and resist the practice of applying ill-fitting paradigms
to new problems presented by changing technology.
Candidate for Juris Doctor, New England School of Law (2010). B.A., History; B.S.,
Communications, cum laude, Ithaca College (2007). I would like to thank Joseph Tempesta,
Professor of History at Ithaca College, for demonstrating the momentous significance of
evolving thought.
127
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The first section of this Note presents background material about several
foundational concepts in copyright law and digital imaging technology. This
Note then demonstrates that digital wire-frames should be afforded copyright
protection, because such wire-frames satisfy the elements of the Copyright
Act. What is likely to be the biggest obstacle to copyright protection of
digital wire-frames is finding originality.
Originality is a term of art within copyright. The Supreme Court has held
that originality is a constitutionally required element of copyright. The
Supreme Court has also held that in order for a work to possess originality, it
must satisfy two elements: (1) independent creation and (2) a spark of
creativity. These elements impose an extremely low burden. Independent
creation merely means that a work is not copied. The spark of creativity
requirement is less clearly defined. However, almost any artistic or aesthetic
judgment will satisfy the spark of creativity requirement.
This Note posits that, almost by definition, wire-frames are original works of
authorship fixed in a tangible medium of expression. As such, the protection
of digital wire-frames is proper under the existing U.S. copyright law regime.
Further, the underlying policy considerations that have historically driven
copyright law in the United States present compelling reasons for protecting
such works.
INTRODUCTION ..........................................................................................129
I. Background............................................................................................130
A. Sources of Copyright Law.......................................................131
1. The Constitution ................................................................131
2. The Copyright Act .............................................................132
a. Fixation .......................................................................135
b. Works of Authorship...................................................136
B. Originality................................................................................137
1. The Two-Step Originality Test from Feist Publications, Inc.
v. Rural Telephone Service Co. .........................................137
2. Interpretations of Originality in Cases Prior to and After
Feist ...................................................................................139
C. Alternative Approaches to Copyright: Moral Rights...............142
D. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc.:
Demonstrating the Danger of Misinterpreting Originality ......143
E. Digital Imaging........................................................................145
II. Digital Wire-Frames Are Copyrightable Works of Authorship ...........146
A. Independent Creation...............................................................146
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INTRODUCTION
Copyright serves the vital function of encouraging progress in the
useful arts.1 It does so by securing certain exclusive rights to authors,
thereby providing an economic incentive for intellectual endeavors.2 The
United States is the worlds largest exporter of copyrighted material.3 It is
crucial for U.S. copyright law to adapt to changes in technology to protect
this vast economic interest and also to encourage development of the
useful arts.4 In order to ensure these objectives are achieved, courts must
remain constantly aware of the underlying policies for protecting
intellectual property while resisting the practice of applying ill-fitting
paradigms to new problems presented by changing technology.5
Digital imaging technology is increasingly prevalent in all forms of
visual communication including film, television, print, and the Internet.6
1. See Irah Donner, The Copyright Clause of the U.S. Constitution: Why Did the
Framers Include It with Unanimous Approval?, 36 AM. J. LEGAL HIST. 361, 369 (1992).
2. Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2544-45 (codified at 17 U.S.C.
102 (2006)) [hereinafter cited to the relevant U.S.C. provision]; see Donner, supra note 1;
Leslie A. Pettenati, Moral Rights of Artists in an International Marketplace, 12 PACE INTL
L. REV. 425, 428 (2000).
3. Sharon E. Foster, Prelude to Compatibility Between Human Rights and Intellectual
Property, 9 CHI. J. INTL L. 171, 192 (2008); Alan J. Hartnick, The Revolt of the Students: Is
Intellectual Property Dead?, N.Y. L.J., Feb. 11, 2008 at 3 (2008); Stephanie Condon, Bush
Signs RIAA-Backed Intellectual-Property Law, CNET NEWS, Oct. 13, 2008,
http://news.cnet.com/8301-13578_3-10064527-38.html?tag=mncol; Natl Sci. Bd., Natl
Sci. Found., Science & Engineering Indicators, Technology Development and Diffusion 6-
6 (1996), http://www.nsf.gov/statistics/seind96/chap_6.pdf.
4. U.S. CONST. art. I, 8, cl. 8; see Sheldon W. Halpern, The Digital Threat to the
Normative Role of Copyright Law, 62 OHIO ST. L.J. 569, 572-73 (2001); Hartnick, supra
note 3; Condon, supra note 3.
5. See Halpern, supra note 4, at 590-91.
6. See id. at 571.
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The ways in which some digital images are created present a unique set of
problems for copyright law.7 Specifically, the creation of three-dimensional
images entails a multi-step process during which several potentially
copyrightable works are created.8 However, courts have often been slow to
extend copyright protection to new or different forms of expression.9
Therefore, it is unclear whether courts will consistently extend copyright
protection to expressions that arise at different stages of the digital imaging
process.10
This Note advocates that works of authorship created at various stages
of the digital imaging process, and in particular, digital wire-frames,11 are
entitled to copyright protection. The first section of this Note presents
background material about several foundational concepts in copyright law
and digital imaging technology. This Note then demonstrates that digital
wire-frames should be afforded copyright protection because such wire-
frames satisfy the elements of the Copyright Act;12 almost by definition,
digital wire-frames are original works of authorship fixed in a tangible
medium of expression. As such, the protection of digital wire-frames is
proper under the existing U.S. copyright law regime. Further, the
underlying policy considerations that have historically driven copyright law
in the United States present other compelling reasons for protecting such
works.
I. Background
Prior to any investigation into how copyright law and digital imaging
technology interact, it is necessary to first consider several fundamental
copyright concepts. Specifically, it is necessary to understand the sources
7. See John Gastineau, Note, Bent Fish: Issues of Ownership and Infringement in
Digitally Processed Images, 67 IND. L.J. 95, 95-100 (1991); Halpern, supra note 4, at 578.
8. See Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1260-61
(10th Cir. 2008).
9. For example, photographs were initially not recognized as copyrightable
expressions. See Christine Haight Farley, The Lingering Effects of Copyrights Response to
the Invention of Photography, 65 U. PITT. L. REV. 385, 391 (2004). The same was true of
software and other works in early computer cases. See Anthony L. Clapes et al., Silicone
Epics and Binary Bards: Determining the Proper Scope of Copyright Protection for
Computer Programs, 34 UCLA L. REV. 1493, 1495-96 (1987).
10. One recent case has considered this issue. See Meshwerks, 528 F.3d at 1263-66. This
Note posits that in Meshwerks, the Tenth Circuit incorrectly held that digital wire-frames do
not possess sufficient originality so as to be protected by copyright. See infra Part III.
11. Digital wire-frames are the skeletons of digital three-dimensional images. They are
sometimes referred to as meshes. See infra Part I.E (describing wire-frames and the process
by which they are created).
12. 17 U.S.C. 102 (2006).
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of copyright law, including the U.S. Constitution, the Copyright Act, case
law, and international treaties. The Copyright Act of 1976, which is
currently in force, has a number of terms that require explanation.13 A brief
consideration of the historical development of copyright law is also
illuminating since it demonstrates that new technologies have often
presented challenges to copyright law and that changes in copyright law
must be motivated by the underlying policy, as well as practical
considerations.14
1. The Constitution
Among Congresss enumerated powers in Article I, Section 8 of the
U.S. Constitution is the power [t]o promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries.20 The
Framers of the Constitution recognized the importance of providing
21. See Donner, supra note 1; B. ZORINA KHAN, THE DEMOCRATIZATION OF INVENTION:
PATENTS AND COPYRIGHTS IN AMERICAN ECONOMIC DEVELOPMENT, 1790-1920, at 2 (2005).
22. KHAN, supra note 21, at 3.
23. Id.
24. Id.; Donner, supra note 1.
25. KHAN, supra note 21, at 235.
26. Copyright Act of 1790, ch. 15, 1 Stat. 124 (repealed 1831).
27. See KHAN, supra note 21, at 230. Many of the developments in English Common
Law crossed the Atlantic and became part of U.S. copyright law. See Donner, supra note 1,
at 369-74. The first copyright statute passed in England was the Statute of Anne in 1710.
KHAN, supra note 21, at 230. The purpose of this statute was to democratize intellectual
property by allowing anyone to obtain a copyright for his or her work. Id. The Statute of
Anne limited the length of time for which one may hold exclusive rights to a work, after
which the work would become part of the public domain. Id. The essential elements of the
Statute of Anne remain at the heart of the Copyright Act currently in effect. Id. at 231.
Copyright law today protects works for a limited, statutorily defined time for the benefit of
the copyright holder. 17 U.S.C. 302-304 (2006). When copyright protection expires, the
work enters the public domain where it may be used freely by the public. Id.
28. KHAN, supra note 21, at 235.
29. Copyright Act of 1790, ch. 15, 1 Stat. 124 (repealed 1831).
30. Id.
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31. Copyright Act of 1909, ch. 320, 35 Stat. 1075 (repealed 1976).
32. Id.
33. Id. 4.
34. Id. 23. The 1909 Act also changed the mechanism for attaching copyright from
deposit with a federal court to the time of publication. The term publication was the focus
of much litigation under the 1909 Act. See generally Michael B. Landau, Publication,
Musical Compositions, and the Copyright Act of 1909: Still Crazy After All These Years, 2
VAND. J. ENT. L. & PRAC. 29 (2000) (examining whether the sale of recorded music
constituted a publication under the 1909 Act).
35. Copyright Act of 1909 4.
36. See Stephanie Berg, Remedying the Statutory Damages Remedy for Secondary
Copyright Infringement Liability: Balancing Copyright and Innovation in the Digital Age,
56 J. COPYRIGHT SOCY U.S.A. 265 (2009).
37. See Russ Versteeg, Defining Author for Purposes of Copyright, 45 AM. U. L.
REV. 1323, 1360, 1362 (1996).
38. See Landau, supra note 34, at 42. Fewer and fewer works remain subject to this
statute as the terms of works copyrighted under the 1909 Act expire. Id.
39. H.R. REP. NO. 94-1476 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659 [hereinafter
HOUSE REPORT].
40. The phrase original works of authorship is intended to incorporate without change
the standard of originality established by the courts under the 1909 copyright statute. Id. at
51.
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protected and the point at which copyright protection attaches.41 The 1976
Act expanded the scope of copyright protection to include any original
works of authorship fixed in any tangible medium of expression, now
known or later developed.42 Under the 1976 Act, copyright protection
attaches immediately upon fixation.43 The 1976 Act and the Sonny Bono
Amendment also extended the initial length of copyright protection from
twenty-eight years to the length of the authors life plus seventy years.44
The 1976 Act imposes certain limitations.45 Copyright protection does
not extend to any idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work.46 Essentially,
this provision prevents extending copyright protection to those things that
are generally protected by patent or that should not, for public policy
reasons, be protected by copyright.47
Once copyright protection attaches, the author is granted several
exclusive rights.48 An author is given the exclusive rights to, among others,
reproduce the copyrighted work in copies or phonorecords,49 and
distribute copies or phonorecords of the copyrighted work to the public by
sale or other transfer of ownership, or by rental, lease, or lending.50 These
exclusive rights provide tremendous potential for profit.51 Furthermore,
since copyright is a property interest, a copyright holder also has the right
to defend his or her work against all others.52 Copyright protection is both
extensive and long lasting.53
Under the current Copyright Act, a work is entitled to copyright
protection so long as it is an original work[] of authorship fixed in [a]
tangible medium of expression.54 This phrase sets forth the guiding
principle regarding what can be protected under copyright.55 Tangible
medium of expression pertains to fixation in a form that can be observed by
others either naturally or with the aid of machines, such as a writing or
recording.56 The terms fixed, works of authorship, and original are
vital to understanding what material is subject to copyright.57 It is important
to note that the terms fixed and works of authorship are defined in the
statute, while original is not.58 Furthermore, the crux of many copyright
issues, including the one addressed in this Note, is the definition and
application of originality.59 As such, this Note briefly discusses the first
two terms and gives originality special attention in the following section.
a. Fixation
Under the Copyright Act, copyright protection attaches immediately
upon fixation.60 Fixation is the process by which an expression is placed in
a tangible medium that can be perceived by others directly or with the aid
of machines.61 The Copyright Act provides that fixation in a tangible
medium of expression [occurs] when its embodiment in a copy or
phonorecord, by or under the authority of the author, is sufficiently
b. Works of Authorship
The Copyright Act provides that works of authorship include, but
are not limited to, the following categories: (1) literary works; (2) musical
62. Id. The definition of fixed further provides, [a] work consisting of sounds, images,
or both, that are being transmitted, is fixed for purposes of this title if a fixation of the
work is being made simultaneously with its transmission. Id. This provision was added to
eliminate an ambiguity created by broadcasted images and sounds that were not recorded
prior to transmission. HOUSE REPORT, supra note 39, at 51.
63. 17 U.S.C. 102 (2006).
64. See generally Matthew Bender & Co. v. West Publg Co., 158 F.3d 693 (2d Cir.
1998); Data Cash Sys., Inc. v. JS&A Group, Inc., 480 F. Supp. 1063 (N.D. Ill. 1979).
65. See Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1246-54 (3d
Cir. 1983) (holding that even computer software stored only on temporary memory is
subject to copyright protection); Firoozye v. Earthlink Network, 153 F. Supp. 2d 1115,
1124-26 (N.D. Cal. 2001) (holding that computer programs are covered by copyright).
66. See White-Smith Music Publg Co. v. Apollo Co., 209 U.S. 1, 18 (1908).
67. See id.
68. 17 U.S.C. 102(a).
69. See Bender, 158 F.3d 693.
70. See, e.g., id.; Midway Mfg. Co. v. Artic Intl, Inc., 704 F.2d 1009, 1011 (7th Cir.
1983). For example, information stored on a hard drive is sufficiently fixed so as to be
afforded copyright protection.
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B. Originality
The Copyright Act does not define the term original.75 Therefore,
the meaning of original must be determined through statutory
interpretation and judicial decisions interpreting the Copyright Act.76
Originality in copyright can be visualized as layers of a multi-layer cake.
Each new layer of original authorship is entitled to copyright.77 However,
only the original elements (i.e., each new layer of cake) are eligible for
protection; in copyright terms, each new layer of cake is an original work
of authorship.78
82. Id.
83. Id. at 342-43.
84. Id. at 344.
85. Feist, 499 U.S. at 344.
86. Id. at 345.
87. See id. at 346.
88. See HOUSE REPORT, supra note 39, at 51.
89. Feist, 499 U.S. at 345. Prior to Feist, originality was not consistently required to
have two elements (i.e., independent creation and a spark of creativity). However, following
the Courts decision in Feist, it is widely recognized that originality must possess the two
elements. See VerSteeg, Rethinking Originality, supra note 77, at 805-07; Russ VerSteeg,
Sparks in the Tinderbox: Feist, Creativity, and the Legislative History of the 1976
Copyright Act, 56 U. PITT. L. REV. 549, 550-51, 554 (1995) [hereinafter VerSteeg, Sparks].
90. See Feist, 499 U.S. at 345.
91. Id. at 346.
92. VerSteeg, Rethinking Originality, supra note 77, at 823-27. Some have argued that
requiring anything more than a showing of independent creation for originality violates
Congresss intent in intentionally excluding creativity from the statute. Id. at 877-79.
93. Feist, 499 U.S. at 348.
94. Id. at 345.
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95. Id. (citing 1 M. NIMMER & D. NIMMER, COPYRIGHT 2.01[A], [B] (1990)).
96. Id. at 348.
97. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249-50 (1903).
98. Feist, 499 U.S. at 345.
99. Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936).
100. 111 U.S. 53 (1884).
101. See id. at 58.
102. Id. at 59-60.
103. See 188 U.S. 239, 249-51 (1903).
104. See id. at 251.
105. See id.
106. Id. at 249-50.
107. See, e.g., SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 309
(S.D.N.Y. 2000).
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contribution and not the underlying information.108 In that case, the issue
was whether photographs of picture frames taken for use in a catalog were
sufficiently original to warrant copyright protection.109 The court held they
were.110 This decision was based largely on consideration of the factors laid
out in Burrow-Giles Lithographic Co. v. Sarony.111
The Supreme Court recognized that while the vast majority of works
make the grade quite easily, there are instances where an expression may
lack sufficient originality.112 There are several commonly recognized
limitations on what is original and therefore subject to copyright
protection.113 Facts and ideas cannot be copyrighted.114 The Court
recognized that [n]o author may copyright his ideas or the facts he
narrates.115 This is because facts do not owe their origin to an act of
authorship. The distinction is one between creation and discovery: The first
person to find and report a particular fact has not created the fact; he or she
has merely discovered its existence.116 Facts are un-copyrightable
because they bear no mark of variation that is beyond the trivial.117 The
legislative history of the Copyright Act of 1976 clearly shows that it was
Congresss intention to maintain the established standards of originality
that existed prior to the 1976 Act.118
Feist extinguished an issue that had split courts in previous copyright
originality cases: the sweat of the brow theory of copyright.119 In early
copyright jurisprudence there were two competing theories regarding what
should trigger copyright protection.120 One theory, often referred to as the
sweat of the brow theory, said that a work was entitled to copyright
protection if some quantum of effort was expended in its creation.121 The
currently the second prong (the first being independent creation) required
for a finding of originality.134
derogatory action in relation to, the said work, which would be prejudicial
to his honor or reputation.146
The Berne Convention Implementation Act of 1988 (Berne
Convention) shows the United States reluctance to fully adopt all of the
provisions of the Berne Convention.147 The Berne Implementation Act is a
watered-down adoption of the Berne Convention.148 However, the Visual
Artists Rights Act of 1990 brought the United States a step closer to the
spirit of Berne, at least with respect to a narrowly defined category of
works.149 The Visual Artists Rights Act of 1990 created a special set of
rights for visual artists that reflect provisions in the Berne Convention.150
For example section 106A creates the right to claim authorship of that
work, prevent the use of his or her name as the author of any work of
visual art which he or she did not create, prevent the use of his or her
name as the author of the work of visual art in the event of a distortion,
mutilation, or other modification of the work which would be prejudicial to
his or her honor or reputation, and to prevent any destruction of a work
of recognized stature, and any intentional or grossly negligent destruction
of that work is a violation of that right.151 The United States adopted at
least some aspects of the natural rights theories embodied in the Berne
Convention.152
E. Digital Imaging
Digital technology presents numerous challenges to copyright law.167
In the past several years, much legal scholarship and litigation has focused
on the impact of digital technology on photography.168 Prior to engaging in
an analysis of how copyright law should interact with digital wire-frames,
it is helpful to consider in greater detail the process by which digital images
are created. The process of creating three-dimensional images is a
complicated process requiring much skill.169 It involves procedures that are
akin to sculpting, painting, and other traditional art forms, transposed,
however, into the digital world.170 Generally, the process for creating life-
like three-dimensional digital images involves three steps: capture, wire-
framing, and skinning.171
Wire-framing refers to the process by which a three-dimensional
digital object is given structure.172 Wire-frame images are a way of viewing
three-dimensional objects that represent shapes as intersections of lines in
planes.173 The structure works like a skeleton.174 A digital artist must create
each bone of the skeleton.175 A finished wire-frame looks much like a
finished digital image.176 However, it does not have texture or skin, that
is, the appearance of texture or color.177 Wire-frames are also necessary for
animation.178 Three-dimensional animation programs generally have
physics, which, much like in the natural world, impose certain rules upon
moving bodies.179
167. See Peter S. Menell, Envisioning Copyright Laws Digital Future, 46 N.Y.L. SCH. L.
REV. 63, 199 (2003).
168. See Lisa Byrne Anastasio Potter, Note, Alterated Realities: The Effect of Digital
Imaging Technology on Libel and Right of Privacy, 17 HASTINGS COMM. & ENT. L.J. 495,
502-05 (1995).
169. See Chris Wedge, Foreword to PETER WEISHAR, BLUE SKY: THE ART OF COMPUTER
ANIMATION: FEATURING ICE AGE AND BUNNY (2002).
170. See, e.g., How We Build a Rendered 3D Model, An Example from the Northwest
Palace of Ahsur-nasir-pal II at Nimrud, Interactive Publication Prototype,
http://www.learningsites.com/NWPalace/HowWeBuildaModel02/RenderProcess.htm (last
visited Dec. 1, 2009) (demonstrating how to make a 3D image from a sculpture).
171. See WEISHAR, supra note 169, at 16-32, 44-45.
172. See id. at 16-32.
173. See id. at 44.
174. Id. at 26.
175. See id.
176. See id. at 26-29.
177. See WEISHAR, supra note 169, at 26.
178. Id.
179. Id.
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A. Independent Creation
In order to be independently created, an expression must not be
copied from a pre-existing expression.181 Judge Learned Hand addressed
the issue of independent creation in Sheldon v. Metro-Goldwyn Pictures
Corp.182 In that case, the plaintiffs, copyright holders to a play, alleged that
defendants, Metro-Goldwyn Pictures Corporation, violated their exclusive
rights by producing a film so similar to the play that it constituted
copying.183 Defendants argued that plaintiffs could not hold copyright to
the themes and events in the play since they were very common in
literature.184 In rejecting this argument, Judge Hand stated:
[Defendants erroneously believe that like] patent, a copyrighted
work must be not only original, but new. That is not however the
law as is obvious in the case of maps or compendia, where later
works will necessarily be anticipated. . . . Borrowed the work
must indeed not be . . . but if by some magic a man who had
never known it[,] were to compose anew Keatss Ode on a
Grecian Urn, he would be an author, and, if he copyrighted it,
others might not copy that poem . . . .185
In other words, a work can be original for the purposes of copyright,
without being novel, new, or unique.186 Therefore, digital wire-frames that
are not copied from pre-existing works satisfy the first prong of the test for
originality set forth in Feist.187
180. See supra Part I.B.1 (describing the elements of originality as described in Feist).
181. See VerSteeg, Rethinking Originality, supra note 77, at 805-06; VerSteeg, Sparks,
supra note 89, at 550-51.
182. 81 F.2d 49, 53 (S.D.N.Y. 1936).
183. Id. at 49.
184. Id.
185. Id. at 53-54.
186. See id.
187. See Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344-45, 361 (1991).
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B. Spark of Creativity
The spark of creativity requirement is also satisfied with regard to
wire-frames since digital wire-frames require the skilled sculpting by
digital artists.188 There is almost necessarily some degree of creativity in
wire-frames that are created by digital sculptors, since nearly every
component of such wire-frames requires artistic or aesthetic judgment.189
This principle was established in Burrow-Giles with regard to photography
and is equally applicable in the case of wire-frames.190 The personal
judgment and artistic skill required in the wire-framing process is precisely
what was recognized as crucial for establishing originality in Burrow-
Giles191 and its progeny.192 The skillful manipulation of digital information
that is used to create digital wire-frames is even more pervasive than that
required to achieve a desired aesthetic result in the manipulation of a
photograph, which is generally sufficient to satisfy the spark of creativity
requirement.193
In SHL Imaging, the court recognized that the combination of
elements that satisfy the minimal spark of creativity requirement
necessarily var[ies] depending on . . . creative choices.194 The principles
applied in photography cases are illustrative for other pictorial works.195
The factors that must be considered in finding creativity in digital wire-
frames will, as the court acknowledged in SHL Imaging, necessarily
vary.196 However, the operative fact is that just as a photograph is
copyrightable so long as it is not a mechanical reproduction,197 so too are
198. Id.
199. Id. at 310.
200. Id. at 311.
201. Id.
202. Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 362-63 (1991).
203. Id.
204. See SUPPLEMENTARY REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL
REVISION OF THE U.S. COPYRIGHT LAW: 1965 REVISION BILL, reprinted in 4 GEORGE S.
GROSSMAN, OMNIBUS COPYRIGHT REVISION LEGISLATIVE HISTORY 3 (2001) (Our intention
here is to maintain the established standard[s] of originality without implying any further
requirements of aesthetic value, novelty, or ingenuity.); HOUSE REPORT, supra note 39, at
51; Dale P. Olson, Copyright Originality, 48 MO. L. REV. 29, 31 (1983).
205. VerSteeg, Sparks, supra note 89, at 579.
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206. Id.
207. Id. at 572-73 (defining originality as an independent creation of an author who did
not copy it from another source).
208. See H.R. REP. NO. 89-4347, at 42-43 (1966), reprinted in 4 GEORGE S. GROSSMAN,
OMNIBUS COPYRIGHT REVISION LEGISLATIVE HISTORY 3 (2001); VerSteeg, Sparks, supra
note 89, at 579-80.
209. VerSteeg, Sparks, supra note 89, at 574.
210. Id. at 577.
211. See id.
212. See id. at 579.
213. See supra text accompanying notes 169-79.
214. 528 F.3d 1258 (10th Cir. 2008).
215. See id. at 1264.
216. See id.
217. Id.
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The Meshwerks court held that the wire-frame models did not possess
any individualizing features.218 The court found that since the models
were untouched by a digital paintbrush and not depicted in front of a
palm tree or some other scene, the models depict[ed] nothing more than
unadorned Toyota vehiclesthe car as car.219 Embellishment, however, is
not the only means of creating an original expression.220 By relying so
much on the factors vital to photography cases, the Meshwerks court
ignored some of the obvious distinguishing characteristics of digital
images.221 In particular, a digitally-sculpted image is not a mere mechanical
reproduction, but rather (in most cases) a carefully crafted digital skeleton
made with potentially millions of digital objects.222 Meshwerks personnel
manually sculpted each wire frame by manipulating digital lines on the
screen.223 Meshwerks estimated that roughly ninety percent of the data
points contained in the final model were the result of manual sculpting by
digital artists.224 Such manual sculpting requires artistic and aesthetic
judgment, precisely what has been identified as vital to originality in
several photography cases.225 In these cases, the process of creating the
image was sufficient to establish originality so long as the artists judgment
was necessary to create the final work.226
Defendants in Meshwerks argued that wire-frames failed to meet this
threshold requirement for originality.227 Defendants claimed that in the case
of three-dimensional images based on real-life objects, the digital artist is
merely copying an already existing work into a new medium.228 Proponents
of this argument rely either on the theory of simple copying or on the
theory of a derivative work with no new copyrightable expression.229
230. See Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 352-53 (1991)
(describing the sweat of the brow doctrine and its flaws).
231. See VerSteeg, Rethinking Originality, supra note 77, at 825-43.
232. See cases cited supra note 192.
233. See, e.g., United States v. Hamilton, 583 F.2d 448, 451-52 (9th Cir. 1978).
234. See 17 U.S.C. 101 (2006).
235. See supra text accompanying notes 169-79.
236. Potter, supra note 168, at 498.
237. See id. at 499.
238. See id. at 498-99.
239. SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 306 (S.D.N.Y.
2000).
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case involving photography; rather courts should look for any sort of
artistic or aesthetic expression, regardless of the type of work or medium in
which it is fixed.240
Works of authorship are not judged on the quality of the creativity,
rather merely on the presence of it.241 However, depending on the medium
of expression in which a work of authorship is fixed, creativity manifests
itself in different ways.242 For example, in cases involving maps, where all
the information contained within the map is either part of the public
domain or factual, originality is determined by whether the combination
and arrangement of facts are independently created and possess a spark of
creativity.243 Ultimately, creativity can only be determined by the physical
act through which an expression is fixed.244 Each medium requires different
actions to secure fixation, and the way one performs these actions is
relevant in determining whether creativity exists.245 For example, if a
digital wire-frame were created entirely by an automatic process, there
would be no opportunity for a digital artist to inject any degree of
creativity, just as a photograph with no artistic judgment would not be
subject to copyright protection.246 However, where artists make judgments
as to how to recreate a model using digital processes, some quantum of
creativity is present.247 So long as such models are not copied, they are
original under Feist, its progeny, and the Copyright Act.
Wire-frames do not fall within the narrow category of works that
lack sufficient originality.248 In most instances wire-frames cannot be
categorized as mechanical, entirely typical, garden-variety,
obvious, basic information, or mere selection, since each is the
product of significant creative input.249 Nor is the creation of wire-frames
240. See generally VerSteeg, Rethinking Originality, supra note 77, at 803 (noting that
there is no clear definition of originality).
241. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59-60 (1884).
242. See, e.g., Olson, supra note 204, at 36.
243. See, e.g., United States v. Hamilton, 583 F.2d 448, 451-52 (9th Cir. 1978) (rejecting
the argument that the map in question was not subject to copyright due to lack of
originality).
244. See Olson, supra note 204, at 37-40 (reviewing early Supreme Court copyright
jurisprudence).
245. See id. at 48-50.
246. See Burrow-Giles Lithographic Co., 111 U.S. at 59-60.
247. See id. at 60.
248. Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 359 (1991); see also
VerSteeg, Rethinking Originality, supra note 77, at 821-23.
249. See supra text accompanying notes 169-79. The categories referred to are those
identified by the Court in Feist that are generally not entitled to copyright protection. Feist,
499 U.S. at 362.
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250. See Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1265 (10th
Cir. 2008).
251. See supra text accompanying notes 169-79.
252. See supra text accompanying notes 169-79.
253. See Gracen v. Bradford Exch., 698 F.2d 300, 305 (7th Cir. 1983); L. Batlin & Son,
Inc. v. Snyder, 536 F.2d 486, 492 (2d Cir. 1976); Alfred Bell & Co. v. Catalda Fine Arts,
Inc., 191 F.2d 99, 105 (2d Cir. 1951); Doran v. Sunset House Distrib. Corp., 197 F. Supp.
940, 947-48 (S.D. Cal. 1961).
254. See Mary Campbell Wojcik, The Antithesis of Originality: Bridgeman, Image
Licensors, and the Public Domain, 30 HASTINGS COMM. & ENT. L.J. 257, 266-67 (2008).
255. Compare Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1073 (9th Cir. 2000), with
Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983).
256. See Ets-Hokin, 225 F.3d at 1073.
257. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1260 (10th Cir.
2008).
258. See id. at 1263.
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259. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903).
260. Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 352 (1991).
261. See id. at 358-59.
262. See Meshwerks, 528 F.3d at 1265.
263. See VerSteeg, Rethinking Originality, supra note 77.
264. See VerSteeg, Sparks, supra note 89, at 550-51; Donner, supra note 1.
265. See VerSteeg, Sparks, supra note 89, at 550-51. This does not require, however, that
such works be unique or novel. Id. at 580.
266. See, e.g., Farley, supra note 9, at 389.
267. See id. Photographs were not protected by copyright until the Act of March 3, 1865,
38th Cong., 2d Sess., 13 Stat. 540.
268. See Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir.
1983); Clapes, supra note 9.
269. See sources cited supra note 9.
270. See Berg, supra note 36, at 332.
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energy into creating digital works.271 Whereas not so long ago, an author
pored over a typewriter, and artists sweat onto a canvas, today authors,
artists, and musicians invest equally as much intellectual vigor into
expressing themselves through digital technology.272 In light of these
practical considerations, it is necessary for copyright law to protect digital
works to the utmost.273 By denying copyright protection to digital wire-
frames, the law denies skilled artists protection for the fruits of their
labor.274
The sweat of the brow theory of copyright was extinguished in
Feist.275 However, this does not mean that we as a society believe that an
artist should not be entitled to profit from her labor. Rather, hard work
without something more will not be afforded copyright protection, but
when hard work results in an original expressionas we define that term
it should be entitled to protection under the Copyright Act.276
After considering the process required to create digital wire-frames, it
is apparent that a great amount of skill and artistic discretion is required.277
The creative process involved results in an entirely new work of authorship
in a new medium of expression.278 The process is far less mechanical than
the creation of a photograph.279 There is a significant quantity of judgment
and skill involved in the creation of wire-frames.280 It is likely that no artist
will construct a wire-frame exactly as another artist.281
So long as creativity is a requirement in finding originality, courts
must take into consideration, to some degree, the mental process involved
271. See Aaron A. Hurowitz, Copyright in the New Millennium: Is the Case Against
ReplayTV a New Betamax for the Digital Age?, 11 COMMLAW CONSPECTUS 145, 145
(2003).
272. See generally sources cited supra note 3.
273. Cf. Hurowitz, supra note 271, at 148 (explaining that copyright law inhibits the
introduction of new technologies).
274. See supra Part IV (discussing a proposal to extend the originality analysis to include
digital wire-frames).
275. Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 354-60 (1991).
276. Id. at 346-47.
277. See Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1260 (10th
Cir. 2008); see also supra Part I.E.
278. See WEISHAR, supra note 169, at 6.
279. See generally id. (describing the process of creating a 3D computer animated film
using wire-frames).
280. See generally id.
281. Appellants Reply Brief, Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528
F.3d 1258 (10th Cir. 2008) (No. 2:06-CV-97TC) [hereinafter Appellants Reply Brief].
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CONCLUSION
Digital wire-frames should be afforded copyright protection. Not only
do wire-frame images fall within the scope of the Copyright Act, they are,
in most instances, sufficiently original so as to trigger copyright
protection.292 Regardless of how one conceptualizes originality within the
282. See VerSteeg, Rethinking Originality, supra note 77, at 840. See generally David
Nimmer, Copyright in the Dead Sea Scrolls: Authorship and Originality, 38 HOUS. L. REV.
1, 175-86 (2001).
283. See VerSteeg, Rethinking Originality, supra note 77, at 840.
284. Id. at 826-34.
285. See id. at 803-04.
286. See generally WEISHAR, supra note 169 (describing the process of digital imaging as
it pertains to animation).
287. See id. at 6.
288. Appellants Reply Brief, supra note 281.
289. See supra text accompanying notes 169-79.
290. See WEISHAR, supra note 169, at 6.
291. See id. at 60-67 (describing the animation process).
292. See Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 351-52 (1991); supra
Part II.A-C.
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293. See Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258 (10th Cir.
2008); supra Part III.
294. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 53-56 (1884); supra Part
II.A.
295. See Donner, supra note 1.