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COPYRIGHT PROTECTION FOR THE


FRUITS OF DIGITAL LABOR:
FINDING ORIGINALITY IN DIGITAL
WIRE-FRAMES

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.

Digital imaging technology is prevalent in all forms of visual


communication. The ways in which some digital images are created present a
unique set of problems for copyright law. Specifically, the creation of three-
dimensional images entails a multi-step process during which several
potentially copyrightable works may be created.

Historically, courts have been slow to extend copyright protection to works


created with the aid of new technology. As such, it is unclear whether courts
will consistently extend copyright protection to expressions that arise at
different stages of the digital imaging process.

This Note advocates that works of authorship created at various stages of


digital imaging processes, and in particular, digital wire-frames, are entitled
to copyright protection. Digital wire-frames can be conceptualized as the

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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skeletons of three-dimensional digital images. They are created by digital


sculptors who meticulously construct them from various shapes and lines.

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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B. Spark of Creativity ..................................................................147


C. Legislative History Demonstrates the Minimal Degree of
Creativity Necessary to Establish Originality..........................148
III. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc.: An Example
of Improper Application of Originality Standard................................149
IV. Proposed Change to the Originality Analysis: Considering the
Process of Fixation..............................................................................151
V. The Underlying Policy for Protecting Intellectual Property
Requires Protecting Wire-Frames Under Copyright. ..........................154
CONCLUSION ..............................................................................................156

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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130 NEW ENGLAND LAW REVIEW [Vol. 44:127

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

A. Sources of Copyright Law


Copyright is a form of intellectual property protection.15 In the United
States, there are essentially three branches of intellectual property: patent,
trademark, and copyright.16 Patent, trademark, and copyright are limited as
to what they protect and also how they protect it.17 Copyright protects any
original work of authorship fixed in a tangible medium of expression.18 To
understand precisely what is covered by the preceding phrase, one must
consider the intricacies of U.S. copyright law, beginning with the sources
of copyright protection.19

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

13. Id. 101-02.


14. See Farley, supra note 9.
15. See Donner, supra note 1.
16. See id.
17. For the purposes of this Note, it is sufficient to say that a patent protects new, useful,
and non-obvious products and processes. 35 U.S.C. 101 (2006). Patents are more difficult
to obtain than copyrights and provide more rigorous protection for shorter periods of time.
See Dotan Oliar & Christopher Sprigman, Theres No Free Laughs (Anymore): The
Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94
VA. L. REV. 1787, 1805-08 (2008). Trademark, on the other hand, allows a mark holder to
prevent others from using a particular word, symbol, or device as a brand name for a
product or service if the use of such word, symbol, or device would be confusing for
potential customers. 15 U.S.C. 1127 (2006); see also What Are Patents, Trademarks,
Servicemarks, and Copyrights? http://www.uspto.gov/web/offices/pac/doc/general/
whatis.htm (last visited Dec. 1, 2009).
18. 17 U.S.C. 102 (2006).
19. Id.
20. U.S. CONST. art. I, 8, cl. 8.
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protection for intellectual property.21 They believed that giving rights to


those engaged in intellectual pursuits benefited the public since individual
effort was stimulated by higher expected returns.22 Thus, the Framers
sought to encourage the development and proliferation of science and the
useful arts by providing an economic incentive to authors and inventors
for their efforts.23 By allowing authors and inventors to have exclusive
rights to the fruits of their intellectual pursuits, the Constitution allows the
holder of such exclusive rights to profit from their pursuits.24

2. The Copyright Act


Acting under its constitutional grant, Congress passed the first U.S.
Copyright Act in 1790 [hereinafter the 1790 Act].25 The 1790 Act sought
to encourage learning by securing the copies of maps, charts, and books to
the authors and proprietors of such copies for fourteen years.26 It closely
resembled Englands Statute of Anne.27 In order to obtain copyright
protection, an author or proprietor had to deposit a copy of the work at a
district court.28 Unless an author took this step, he or she would not be
afforded protection under the statute.29 However, if an author properly
followed the procedure, he or she would have exclusive rights to his or her
maps, charts, or books.30

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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The first major re-codification of the Copyright Act occurred in 1909


[hereinafter 1909 Act].31 The 1909 Act made many amendments to its
predecessor.32 Two of the most important modifications were (1) the
expansion of copyright to encompass all writings of [the] author33 and (2)
an increase in the duration of copyright protection from fourteen to twenty-
eight years, with the option to renew protection for an additional twenty-
eight years.34
The significance of including all writings of [the] author under the
statute was to provide protection to expressions embodied in new or
increasingly popular mediums, such as lithographs.35 This expansion shows
that as new technology becomes available copyright law must evolve so as
to further the underlying policy of protecting useful arts.36 Congress
expressed the will of the people to protect works that are believed to have
intellectual value.37 The 1909 Act remains effective for works that were
copyrighted under it.38
The Copyright Act of 1976 [hereinafter the 1976 Act or the
Copyright Act] was the second major re-codification of copyright law in
the United States.39 Congress sought to update U.S. copyright law while
maintaining several previously established concepts that Congress
determined to be vital to the Framers original intent; primary among these
was the standard of originality established by the courts.40 The most notable
changes to the 1909 Act were the expansion of the subject matter that is

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

41. 17 U.S.C. 102 (2006).


42. Id. (emphasis added).
43. See id. 410(a). Although copyright protection attaches immediately upon fixation
in a tangible medium, the Act provides incentives to registering a work with the Copyright
Office, such as establishing prima facie evidence of the validity of the copyright. See id.
410(c).
44. Under the original 1976 Copyright Act, protection lasted for the life of the author
plus fifty years. Copyright Act of 1976 302(a). This was amended in 1998, now protection
last for seventy years after the authors death. See Sonny Bono Copyright Term Extension
Act, Pub. L. No. 105-298, 102(b), 112 Stat. 2827 (1998) (codified as amended at 17
U.S.C. 302 (2006)).
45. Copyright Act of 1976 107.
46. Id. 102(b); Material Not Subject to Copyright, 37 C.F.R. 202.1 (2008).
47. See Robert Spoo, Ezra Pounds Copyright Statute: Perpetual Rights and the
Problem of Heirs, 56 UCLA L. REV. 1775, 1789 (2009).
48. Copyright Act of 1976 106.
49. Id. 106(1).
50. Id. 106(3).
51. See Donner, supra note 1, at 368-70.
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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

52. See Copyright Act of 1976 106.


53. See id. 102, 302.
54. Id. 102(a) (emphasis added).
55. See VerSteeg, supra note 37, at 1343-49.
56. Copyright Act of 1976 102.
57. See VerSteeg, supra note 37.
58. See Copyright Act of 1976 101-02.
59. See sources cited supra note 9.
60. Fred Anthony Rowley, Jr., Dynamic Copyright Law: Its Problems and a Possible
Solution, 11 HARV. J.L. & TECH. 481, 510-11 (1998). While no further action is required,
there are additional steps a copyright holder may take to ensure protection. See Copyright
Act of 1976 410. For example, a copyright holder may register his or her work with the
Copyright Office for a small fee. See id. By doing so, the author secures certain statutory
protections, such as a presumption of authorship in an infringement action and the option to
recover statutory damages and attorneys fees if successful in such an action. See id. 410-
11.
61. See id. 101.
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permanent or stable to permit it to be perceived, reproduced, or otherwise


communicated for a period of more than transitory duration.62
The Copyright Act allows for fixation in any tangible medium,
including those not yet in existence.63 In early computer copyright
litigation, there was much concern over whether data stored electronically
on a computer could be fixed.64 Early litigation in this area demonstrated
uncertainty by the courts as to the functioning of computers and points to
the broader issue of delayed copyright protection of new technologies.65
The argument against fixation in such cases relied on reasoning similar to
that used in White-Smith Music Publishing Co. v. Apollo Co. (Piano Roll
Case).66 In the Piano Roll Case, the Supreme Court held that a piano roll
should not be afforded copyright protection since it could not be read by
humans.67 Such arguments were dispelled in the 1976 Act by the addition
of the language, copyright protection subsists, in accordance with this
title, in original works of authorship fixed in any tangible medium of
expression, now known or later developed, from which they can be
perceived, reproduced, or otherwise communicated, either directly or with
the aid of a machine or device.68 However, this issue has been largely
resolved.69 Fixation is generally recognized in electronic and digital storage
so long as such data can be perceived by the aid of a machine.70

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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works, including any accompanying words; (3) dramatic works, including


any accompanying music; (4) pantomimes and choreographic works; (5)
pictorial, graphic, and sculptural works; (6) motion pictures and other
audiovisual works; (7) sound recordings; and (8) architectural works.71
Literary works; pictorial, graphic, and sculptural works; motion pictures
and other audiovisual works; and sound recordings are defined within the
statute, while the remaining categories are not.72
Of particular interest in this Note are the definitions of pictorial,
graphic, and sculptural works. The definition provided in the Copyright Act
is essentially an illustrative list of the types of works included in this
category.73 It includes two-dimensional and three-dimensional works of
fine, graphic, and applied art, photographs, prints and art reproductions,
maps, globes, charts, diagrams, models, and technical drawings.74

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

1. The Two-Step Originality Test from Feist Publications, Inc.


v. Rural Telephone Service Co.79
The leading case on originality is Feist Publications, Inc. v. Rural
Telephone Service Co.80 The facts of Feist are as follows: Rural was a
telephone utility provider.81 State regulation required Rural to produce a

71. Copyright Act of 1976 102(a).


72. Id. 101.
73. See id.
74. Id.
75. See id.
76. See HOUSE REPORT, supra note 39, at 51.
77. See Russ VerSteeg, Rethinking Originality, 34 WM. & MARY L. REV. 801, 878
(1993) [hereinafter Versteeg, Rethinking Originality].
78. See id.
79. 499 U.S. 340 (1991).
80. See id.
81. Id. at 342.
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telephone directory of its customers.82 Feist was a phone book publisher


who incorporated Rurals directory into its own and then sold the directory
for a profit.83 Rural brought suit, alleging Feist had infringed upon its
exclusive rights under the Copyright Act as to the directory.84 Feist
defended by arguing that the directory was not an original work of
authorship entitled to copyright protection.85
The Supreme Court held, in a unanimous decision, that [t]he sine
qua non of copyright is originality.86 That is, originality is a threshold
requirement for copyright.87 The Court found that legislative history
indicates that by not including a definition of originality, Congress intended
to impute previously-developed definitions of the term into the Copyright
Act.88 The Court went on to recognize that [o]riginal, as the term is used
in copyright, means only that the work was independently created by the
author . . . and that it possesses at least some minimal degree of
creativity.89 This rule imposes a two-step inquiry when determining
originality.90 Independent creation is a rather direct issue; it requires only
that the work is not copied from a pre-existing work.91 The second prong
imposed by the Court in Feist, a spark of creativity, requires a significantly
more complex analysis.92
Creativity is an ambiguous term, which was left undefined by the
Court.93 It did acknowledge, however, that the quality of creativity is not
the subject of inquiry, but rather the mere presence of creativity.94 It does

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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not matter how crude, humble or obvious an expression might be.95 So


long as it was independently created and possesses some degree of
creativity, it is original under the Copyright Act.96 Originality does not
require novelty.97 The Court acknowledged, a work may be original even
though it closely resembles other works so long as the similarity is
fortuitous, not the result of copying.98 This is a well-settled principle of
copyright law; it is one of the primary distinguishing characteristics of
copyright as compared to patent protection.99

2. Interpretations of Originality in Cases Prior to and After


Feist
An early Supreme Court case interpreting originality was Burrow-
Giles Lithographic Co. v. Sarony.100 In that case, the Court held that a
photograph may be afforded copyright protection so long as the
photographer adds some degree of originality to the expression.101 The
Court held that the photographers decision regarding the pose of the actor,
lighting, composition of the scene, and choice of equipment were sufficient
to make the photograph a copyrightable expression.102
In Bleistein v. Donaldson Lithographing Co., the Supreme Court
refused to require some degree of artistic expression to qualify for
copyright.103 Essentially, this decision recognized that it is not the role of
the Court to distinguish between good or bad expressions.104 The Court
renounced the distinction between artistic and ordinary.105 The Court found
that a very modest expression of personality constitutes sufficient
originality for copyright.106
Recent cases have continued to uphold the minimal degree of
creativity required to find originality.107 In SHL Imaging, Inc. v. Artisan
House, Inc., the court held that [c]opyright covers . . . the incremental

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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140 NEW ENGLAND LAW REVIEW [Vol. 44:127

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

108. Id. at 311.


109. Id. at 303.
110. See id. at 310.
111. Id. at 309-11.
112. Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
113. See Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 707-08 (7th Cir.
1972) (describing the test of copyright infringement).
114. See 17 U.S.C. 102(b) (2006); Alberto-Culver, 466 F.2d 705 passim (finding
slogans do not meet minimum originality standards); Newton v. Diamond, 204 F. Supp. 2d
1244, 1253 (C.D. Cal. 2002) (finding slight musical variations to be insufficiently original).
115. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985).
116. Feist, 499 U.S. at 347.
117. Russ VerSteeg, Intent, Originality, Creativity and Joint Authorship, 68 BROOK. L.
REV. 123, 127 (2002) [hereinafter Versteeg, Creativity and Joint Authorship].
118. See HOUSE REPORT, supra note 39, at 51; Feist, 499 U.S. at 355.
119. See Feist, 499 U.S. at 353, 359-60.
120. See id. at 352.
121. Id. at 356.
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sweat of the brow theory is derived from a natural law interpretation of


intellectual property.122 That is, the Lockean principle that anything
produced by ones body is somehow imbued with a piece of the creator,
and so becomes the possession of the creator.123 In less philosophical terms,
it was based on the principle that one should be entitled to the fruits of his
or her labor.124
The competing theory, prevalent in U.S. copyright jurisprudence and
affirmatively adopted by the Court in Feist, holds that the amount of work
invested in an expression is irrelevant.125 The only consideration is whether
the resulting expression has some quality that should be protected.126 The
Court in Feist indicated that Congress emphasized opposition to sweat of
the brow copyright protection with regard to compilations.127 The purpose
in doing so was to ensure that courts would not repeat the mistake of the
sweat of the brow courts by concluding that fact-based works are treated
differently and measured by some other standard.128 The Court explained
that it was Congresss goal to make plain that the criteria of copyrightable
subject matter stated in section 102 apply with full force to works . . .
containing preexisting material.129 In summary, the 1976 revisions to the
Copyright Act leave no doubt that originality, not sweat of the brow, is
the touchstone of copyright protection . . . .130
While Feist resolved the longstanding tension caused by the sweat of
the brow theory of copyright, it gave rise to an often-lamented definition
of originality.131 By requiring a finding of a spark of creativity, the Court
introduced a subjective inquiry into every copyright case.132 The
appropriateness of the Courts creativity requirement has been
questioned.133 Nevertheless, the spark of creativity requirement is

122. See infra Part I.C.


123. See JOHN LOCKE, SECOND TREATISE OF GOVERNMENT, CHAPTER 5: OF PROPERTY 27
(C.B. Macphereson ed., Hackett Pub. Inc. 1980) (1690).
124. See Leslie A. Pettenati, Moral Rights of Artists in an International Marketplace, 12
PACE INTL L. REV. 425, 429-30 (2000).
125. See Feist, 499 U.S. at 345.
126. See id. at 348.
127. Id. at 352-53.
128. Id. at 357.
129. Id. (quoting HOUSE REPORT, supra note 39, at 57).
130. Id. at 359-60.
131. VerSteeg, Sparks, supra note 89.
132. Feist, 499 U.S. at 345; see VerSteeg, Sparks, supra note 89, at 550-51.
133. VerSteeg, Creativity and Joint Authorship, supra note 117, at 134.
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currently the second prong (the first being independent creation) required
for a finding of originality.134

C. Alternative Approaches to Copyright: Moral Rights


Not all countries follow the U.S. copyright model.135 Many civil law
countries have a different conception of intellectual property protection and
recognize moral rights.136 In some countries, copyright protection is not
something given to an author by the government, but rather it is a natural or
moral right that exists as soon as an author creates an expression.137 Such
an interpretation of intellectual property is based on the Lockean principle
that an individual has an interest in the product of his or her body.138 An
idea is as much a product of ones body as labor, and is therefore entitled to
protection by natural law.139
Although these principles do not prevail in present-day Anglo-
American copyright law, they enjoy prominence in other parts of the
world.140 Furthermore, such theories also suggest policy considerations of
encouraging the useful arts for the betterment of society.141 The Berne
Convention, to which the United States is a signatory, adopts at least some
natural rights principles with regard to copyright.142 The Berne Convention
protects copyrighted works of signatory countries without regard to
formalities.143 The protections afforded by the Berne Convention are
similar to those provided by the U.S. Copyright Act,144 however they also
provide a number of moral rights.145 For example, the Berne Convention
provides that an author shall have the right to claim authorship of the work
and to object to any distortion, mutilation or other modification of, or other

134. Feist, 499 U.S. at 345.


135. See generally Pettenati, supra note 124.
136. See id. at 426-27, 442-44.
137. See id. at 429.
138. See LOCKE, supra note 123, at 128 (Though the earth, and all inferior creatures be
common to all men, yet every man has a property in his own person. This nobody has any
right to but himself. The labour of his body, and the work of his hands . . . are properly
his.).
139. See id.
140. See Pettenati, supra note 124, at 426-27.
141. See generally id.
142. See Berne Convention for the Protection of Literary and Artistic Works, art. 6bis,
July 24, 1971, 24 U.S.T. 1749, available at http://www.law.cornell.edu/treaties/
berne/overview.html [hereinafter Berne].
143. See id. art. 5(2).
144. Compare Copyright Act of 1976 106A (2006), with Berne, supra note 142, art. 6.
145. See Berne, supra note 142, art. 6.
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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

D. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc.:


Demonstrating the Danger of Misinterpreting Originality
A recently decided case from the Tenth Circuit Court of Appeals,
Meshwerks, held that digital wire-frames of Toyota car models were not
sufficiently original so as to be protected by Copyright.153 The court relied
on Feist and its progeny to determine that the wire-frames created by
Meshwerks, for use in an advertisement for Toyota, were not sufficiently

146. Id. art. 6bis.


147. See Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat.
2853 (codified as 17 U.S.C. 101).
148. Compare id., with Berne, supra note 142.
149. Visual Artist Rights Act of 1990, Pub. L. No. 101-650, 104 Stat. 5128 (codified at
17 U.S.C. 106(A)); see H.R. REP. NO. 101-735 (1990), as reprinted in 1990 U.S.C.C.A.N.
6935; Pettenati, supra note 124, at 431.
150. 17 U.S.C. 106A; see Berne, supra note 142.
151. 17 U.S.C. 106A.
152. See Pettenati, supra note 124, at 428-30.
153. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1260 (10th Cir.
2008). Meshwerks, Inc. is a cutting-edge 3D [d]igital [c]ontent [c]reation [s]tudio that
creates digital models or parts of digital models for television, film, and commercial
purposes. Meshwerks: About Us, http://www.meshwerks.com (last visited Dec. 1, 2009).
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original to be protected by copyright.154 The court held so, even while


recognizing that the creation of the wire-frames required significant
amounts of work and creativity.155 For example, after taking measurements
of the Toyota cars, Meshwerks personnel manually sculpted each wire
frame by manipulating digital lines on the screen.156 Meshwerks estimated
that approximately ninety percent of the data points contained in the final
models were manually sculpted.157
The Tenth Circuit relied on cases involving photographs158 to
determine that digital wire-frames of cars were not sufficiently original.159
The court noted that photographers are entitled to copyright for their
incremental contribution.160 That is, photographs are copyrightable only
to the extent that pose, positioning, background, lighting, shading, and the
like can be attributed to the photographer.161 The Tenth Circuit held that to
the extent [works] do not involve any expression apart from the raw facts
in the world, they are not copyrightable.162
Here, the key fact was that Meshwerks digital wire-frame computer
models depict Toyotas 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.163 The court held, Meshwerks models depict nothing
more than unadorned Toyota vehiclesthe car as car.164 The court
reasoned that if the car was removed from Meshwerks work, nothing
copyrightable was left.165 However, as discussed below, the court in
Meshwerks improperly analyzed the creative spark required for
originality.166

154. See Meshwerks, 528 F.3d at 1267-68.


155. Id. at 1268.
156. See id. at 1261.
157. Id. at 1260.
158. Id. at 1263-67.
159. Id. at 1269.
160. Meshwerks, 528 F.3d at 1264 (citing SHL Imaging, Inc. v. Artisan House, Inc., 117
F. Supp. 2d 301, 311 (S.D.N.Y. 2000)).
161. Id. (discussing Burrow-Giles Lithograph Co. v. Sarony, 111 U.S. 53, 279 (1884)).
162. Id. at 1265.
163. Id.
164. Id.
165. Id. at 1266.
166. See infra Part III. The very cases cited by the court in Meshwerks demonstrate that
any kind of artistic judgment is sufficient to satisfy the spark of creativity requirement.
See, e.g., Rogers v. Koons, 960 F.2d 301, 308 (2d Cir. 1992) (emphasizing photographers
inventive efforts).
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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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II. Digital Wire-Frames Are Copyrightable Works of Authorship.


In all but the narrowest of circumstances, digital wire-frames that
accurately depict real-life subjects satisfy the elements of originality set
forth in Feist.180 Therefore, the authors of such wire-frames should enjoy
the exclusive rights provided by the Copyright Act.

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

188. See supra text accompanying notes 169-79.


189. See Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258, 1260 (10th
Cir. 2008); see supra text accompanying notes 169-79. The narrow circumstances that
would prevent a wire-frame from being afforded copyright protection are those in which a
wire-frame is purely the result of computerized processes (e.g., where a computer takes
measurements and, based on the set of data points, creates a wire-frame image without any
input from human sculptors). See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53,
55, 60 (1884).
190. See Burrow-Giles Lithographic Co., 111 U.S. at 60.
191. See id. at 55 (emphasizing pose, selection and arrangement of costumes, draperies
and other accessories, and lighting and shading).
192. See E. Am. Trio Prods., Inc. v. Tang Elec. Corp., 97 F. Supp. 2d 395, 417 (S.D.N.Y.
2000) (emphasizing layout, angles, lighting, and computer enhancements); Rogers v. Koons,
960 F.2d 301, 307 (2d Cir. 1992) (emphasizing photographers inventive efforts); Gross v.
Seligman, 212 F. 930, 931 (2d Cir. 1914) (emphasizing pose, background, light, and shade).
193. See Meshwerks, 528 F.3d at 1265.
194. 117 F. Supp. 2d 301, 310 (S.D.N.Y. 2000).
195. See VerSteeg, Rethinking Originality, supra note 77, at 837.
196. SHL Imaging, 117 F. Supp. 2d at 310.
197. See id. at 309.
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wire-frames copyrightable so long as there is artistic input and not mere


digital information capture.198
The court in SHL Imaging began its originality analysis by
considering the photographers creative process.199 The court in that case
held that artistic judgment was sufficient to satisfy the Feist standard of
originality.200 The SHL Imaging court also held that the intended purpose of
the photographs (for commercial use) ha[d] no bearing on their ability to
be protected.201
Furthermore, digital wire-frames do not fall into any of the narrow
categories of works that the Supreme Court held were not sufficiently
original in Feist.202 The Court in Feist held that works that are merely
mechanical, entirely typical, garden-variety, obvious, basic
information, mere selection, an age-old practice, firmly rooted in
tradition, so commonplace [as] to be expected as a matter of course,
practically inevitable, or time-honored tradition are insufficient to
warrant copyright protection.203

C. Legislative History Demonstrates the Minimal Degree of


Creativity Necessary to Establish Originality.
Legislative history demonstrates Congress intended to exclude
creativity from the Copyright Act. Congress deliberately left the term
originality undefined in the Copyright Act of 1965 in order to retain the
standard of originality established by judicial decisions under the 1909
Act.204 What then was the definition of originality that Congress wished to
perpetuate by intentionally leaving the term undefined in the Act? There
were actually three definitions of originality that existed prior to the 1976
Act.205 They were (1) independently created; (2) independently created
plus a distinguishable variation; and (3) independently created plus some

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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minimal degree of creativity.206 In a 1963 proposed draft of the Copyright


Act, Congress actually included a definition of originality.207 The definition
adopted by Congress in the proposed draft was the first definitionmere
independent creation.208 This definition submits that originality equals
independent creation and nothing more.209
However, even though Congress ultimately passed the bill with the
proposed definition of originality deleted . . . [i]t is not clear that it was
deleted because the drafters thought that the proposed definition itself was
flawed.210 Quite the contrary: The main objection to the proposed
definition of originality in the 1963 bill was that its redundancy and
potential to give rise to an elevated standard of creativity.211 This legislative
history demonstrates that the creative requirement (if any!) intended by the
drafters of the Copyright Act was minimal.212 As such, the extent of
creativity exhibited by digital sculptors in creating wire-frames is sufficient
to satisfy this requirement.213

III. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc.:214 An Example of


Improper Application of Originality Standard
The Meshwerks case provides an excellent example of how the
originality requirement can be misconstrued when considering wire-
frames.215 The court in Meshwerks erred most egregiously with regard to
originality when it sought direct support from cases involving originality in
photographs without considering the differences between photography and
digital modeling.216 The court also erred when it considered the parties
purpose in creating them.217

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

218. Id. at 1265.


219. Id.
220. See Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1074 (9th Cir. 2000); Apple
Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983).
221. See Meshwerks, 528 F.3d at 1270.
222. See supra Part I.E.
223. See Meshwerks, 528 F.3d at 1260.
224. See id.
225. See SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 306 (S.D.N.Y.
2000); see cases cited supra note 192.
226. See cases cited supra note 192.
227. Meshwerks, 528 F.3d at 1261.
228. Id. at 1268 (defendant arguing its cars are copyrightable expressions).
229. See id. at 1261; Ets-Hokin, 225 F.3d at 1077.
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IV. Proposed Change to the Originality Analysis: Considering the Process


of Fixation
In order to prevent future errors like those in Meshwerks, courts
should inquire into how a work is created, rather than merely the
appearance of the final product. This is not an attempt to bring back the
sweat of the brow analysis.230 This Note does not posit that a digital
sculptor should be entitled to copyright protection merely because wire-
frames require a large quantity of effort. Rather, this Note posits that in
order to determine whether a work is original, courts must determine if
there is a degree of creativity. Since creativity is that mysterious process by
which a human injects something into a work, we must consider the process
through which that something is expressed.231 This is what courts have
done in the line of photography cases,232 and it is what is done in other
cases considering originality in different contexts.233 Digital images,
generally, and wire-frames in particular, are not easily categorized within a
single category of works recognized by the Copyright Act.234 Rather, wire-
frames combine attributes of several types of expression protected by
copyright.235 For example, like photographs, digital wire-frames may result
in a realistic depiction of modeled objects.236 However, unlike photographs
these models will not appear realistic without extensive artistic input from a
digital sculptor; in this regard, digital wire-frames are more akin to
paintings or sculptures.237 Therefore, the originality analysis for such
works, including wire-frames, should not be rigidly confined to an ill-
fitting paradigm. The reason they are distinguishable from the types of
works just mentioned is the way or the process by which they are
created.238 As the court in SHL Imaging recognized, the authorship of the
photographic work is entirely different and separate from the authorship of
the sculpture.239 Therefore, courts should not seek exactly the same
expressions of creativity in a case involving wire-frames as it would in a

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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akin to the mere transposition of a work from one medium to another.250


Rather, each wire-frame requires the skilled manipulation of visual
elements and digital data.251 Even if a digital sculptor were to use data
derived from measurements taken by sensors as a starting point for the
wire-frame, much manipulation is still required.252 Therefore, the creation
of digital wire-frames is unlike cases where a mere change in medium was
held to be insufficient for finding originality.253
A closer look at the mechanics of the process, rather than merely the
final output should be a part of a courts originality analysis. If an
expression, though ultimately viewed as a two-dimensional image, is
created through a process that more closely resembles the process of
sculpture, courts should apply a hybrid analysis of originality that takes
into consideration factors considered in determining originality in each type
of works.254 This argument is based on the fact that works of authorship
that appear very similar may nevertheless receive different originality
analyses as a result of the process by which such works are created.255 For
example, paintings often contain more copyrightable elements than
photographs because a painting is fixed in tangible form purely by the
efforts of the author, while a photograph may be created without
originality.256 The court in Meshwerks failed to recognize the distinction
between digital wire-frames and photographs.257 This case demonstrates the
need for clarification on the requirements of originality in digital wire-
frames.258
This is not to say that that judges should make a searching inquiry as
to the quality of the creativity in an expression. Justice Holmes warned
against this in Bleistein v. Donaldson Lithographing Co., [i]t would be a
dangerous undertaking for persons trained only to the law to constitute

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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themselves final judges of the worth of pictorial illustrations, outside of the


narrowest and most obvious limits.259 Although, originality is a threshold
issue in any copyright action,260 the originality standard is minimal.261
Arguments against finding originality in digital wire-frames fail to
recognize the sophistication of expression inherent in digital wire-
frames.262 Wire-frames are not simply mechanically composited images,
but rather they are created from observation and interpretation of the
natural world.263

V. The Underlying Policy for Protecting Intellectual Property Requires


Protecting Wire-Frames Under Copyright.
The purpose of copyright protection is to provide incentives to further
the useful arts.264 Requiring that works of authorship possess originality
helps to filter out those works that are entitled to copyright protection from
those that are not.265 The history of copyright law reveals a pattern of
changes in technology followed, begrudgingly, by adaptation of the law to
accommodate such innovation.266 For example, in early photography cases,
courts were reluctant to extend copyright protection because they were
unsure whether photographs were works of an author and, if so, whether
such works were original.267 The same is true of early computer cases,
where courts were unsure whether digital storage constituted fixation.268
However, in each of these instances, copyright protection was eventually
extended, either by statutory revision or through judicial interpretation.269
Ultimately, the law must change to accommodate the needs of society.270
As society relies more upon digital technology, we invest more time and

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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in expression.282 Creativity is an infamously elusive term that describes an


equally elusive process.283 Many have attempted to explain the creativity
process through psychology, psychophysiology, and chemistry, though
with limited success.284 Indeed, the use of such a chimera in a legal test has
caused much outcry amongst scholars in the field.285 Nevertheless, so long
as the law requires consideration of creativity, lawyers must continue to
seek a tenable answer.
Without explicating the vast array of literature on the topic of
creativity, this Note posits that the process of sculpting digital wire-frames
involves a creative process equal to that of sculpting, painting, or
photography. Digital sculpting requires the observation of an image,
followed by the internalization of that image, and finally the expression of
the internalized stimulus into a medium that can be observed by others.286
Creativity exists between and during each of these stages.287 There are
nearly infinite ways to create wire-frames, even if two may ultimately
appear very similar.288 Even simple structures in the natural world require
complex restructuring in the digital realm.289 A great deal of creativity is
required of an author creating even simple wire-frames.290 Furthermore, for
wire-frames that will be animated there is further creativity required in
determining how the wire-frame will move, how it will be skinned, and
scaled.291

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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confines of Feist, wire-frames that are independently created and that


possess a spark of creativity must be protected by copyright.
In order to properly analyze the originality of digital wire-frame
images, courts must consider not only the final appearance of wire-frames,
but also the process by which they are created. The court in Meshwerks
demonstrates the shortcomings of an over-simplified approach to
determining the category of a work.293 Since digital wire-frames require
significant creative input by their creators, and are more than mere
mechanical reproductions, they are entitled to protection for each element
that was created independently and with a spark of creativity.294 Generally,
such protection will be great since all but the simplest wire-frame images
require a significant amount of discretion and creative input by a digital
sculptor.
Consideration of the policies underlying U.S. copyright law provide
further support for the argument that wire-frame images should be afforded
copyright protection. In particular, since digital imaging is a burgeoning
industry, the copyright office should encourage digital artists to produce
innovative works for many applications. One way of doing this is to
provide copyright protection to digital artists so as to provide the economic
incentive envisioned by the Framers.295

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.

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