Archive for February 2010
09 Feb, 2010 | Posted by: photosource
Two Decisions Confirm
For Product Photos
By Joel Hecker, Esq.
On November 5, 2009,
the United States Court of Appeals for the Seventh Circuit reversed an erroneous decision out of the United States District Court in Chicago, and on January 14, 2010, a United States District Judge in New York reached the same conclusion, that photographs of products taken on assignment can be protected by the photographer under copyright law.
The Seventh Circuit case, Daniel P. Schrock v. Learning Curve International, RC2 Brands, Inc, and HIT Entertainment, concerned the popular “Thomas & Friends” train characters. HIT licensed the right to make toy figures of its train characters to defendant Learning Curve (now owned by defendant RC2 Corporation). Learning Curve then retained Schrock to take photographs of its toys, including those based upon the Thomas & Friends properties.
Schrock granted limited rights to Learning Curve
to use his resulting photos of Learning Curve’s products. This arrangement continued on a regular basis for about four years. Schrock’s invoices, eventually totaling more than $400,000, were paid in full.
Learning Curve stopped giving work to Schrock in 2003, but continued to use some of Schrock’s photos
in its printed advertising, packaging and on the internet. In 2004, the photographer registered his photographs with the Copyright Office and obtained copyright registration certificates in his name. He then brought his lawsuit for copyright infringement.
On defendants’ motion for summary judgment,
the primary issue was whether Schrock’s photos, as derivative works of the actual toys, were sufficiently original to obtain copyright protection, and whether defendants’ consent was required for Schrock to register the photos
with the Copyright Office.
The district court, focusing on the derivative issue, granted summary judgment and threw out the case.
The Copyright Act
A derivative work is defined in the Copyright Act as a:
“…work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which as a whole represent an original work of authorship, is a ‘derivative work.’”
The appellate court assumed that Schrock’s photos came within the definition of derivative works since they “recast, transformed or adopted” the three dimensional toys into a different, two-dimensional medium. But that was only the beginning of the analysis.
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