Copyright Law - Seventh Circuit Holds Product Photography Sufficiently Creative for Copyright as Derivative Works

By Hall, Marcus | Suffolk University Law Review, Spring 2011 | Go to article overview

Copyright Law - Seventh Circuit Holds Product Photography Sufficiently Creative for Copyright as Derivative Works


Hall, Marcus, Suffolk University Law Review


Copyright Law--Seventh Circuit Holds Product Photography Sufficiently Creative for Copyright as Derivative Works--Schrock v. Learning Curve Int'l, Inc., 586 F.3d 513 (7th Cir. 2009)

Originality stands as both a constitutional and statutory prerequisite for copyright protection. (1) Nevertheless, the absence of a clear definition of copyright originality in the Copyright Act and in judicial application has lead to uncertainty regarding the meaning of the term "originality" in copyright law. (2) Despite the ambiguity, originality endures as the very premise of copyright law and requires thorough articulation in order to establish the boundary between a truly original work and a work exhibiting only a marginal contribution by the alleged author. (3) In Schrock v. Learning Curve International, Inc., (4) the Seventh Circuit Court of Appeals examined whether inherently accurate product photographs contained the requisite amount of originality to be entitled to copyright protection as derivative works. (5) By concluding that derivative works are not held to a higher standard of originality than other works, the Seventh Circuit Court of Appeals declared that the combination of the photographer's technical and artistic choices produced a sufficient degree of creative distance to warrant a finding of originality. (6)

Daniel Schrock is a professional photographer specializing in product imagery. (7) In 1999, Learning Curve International, Inc. (Learning Curve), hired Schrock to create product photographs of some of its merchandise, including toys based on the characters from the popular children's television show Thomas & Friends. (8) Over the following four years, Learning Curve retained Schrock's services on numerous occasions, paying him more than $400,000 for the promotional photographs. (9) Learning Curve used the resulting product photographs in paper and online catalogs as well as on product packaging. (10)

After Learning Curve stopped contracting him for work, Schrock registered some of the photographs for copyright protection and then demanded that Learning Curve either pay a licensing fee or cease using his photos in advertising and on product packaging. (11) When Learning Curve refused, Schrock brought suit in the United States District Court for the Northern District of Illinois, alleging copyright infringement and other state law claims. (12) In its defense, Learning Curve moved for summary judgment under the theory that the product photographs were insufficiently original to justify copyright protection. (13) Learning Curve also argued in its motion that the photos were derivative works of the underlying products, thereby asserting that Schrock should have obtained Learning Curve's permission before acquiring the relevant copyright interest. (14)

In granting Learning Curve's motion for summary judgment, the district court ruled that the photos were derivative works, and therefore Schrock needed Learning Curve's permission not only to make the photographs, but also to register them for copyright protection. (15) The Seventh Circuit Court of Appeals, while assuming that the photos were derivative works for the purposes of its opinion, reversed the district court and held the photos to be sufficiently original to warrant copyright protection, which attaches by operation of law irrespective of permission or lack thereof from the owner of the underlying work. (16)

The fundamental component necessary for a work to receive copyright protection is that it must be an "original work[] of authorship." (17) In referring to the originality requirement as the "sine qua non of copyright," the United States Supreme Court has held that a work must be independently created and have a minimal degree of creativity to qualify for copyright protection. (18) Elaborating on the constitutional requirement for copyright protection, the Court further stated "[o]riginality does not signify novelty," but the author must impart some creative spark to the work to be eligible for protection. …

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