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I. COPYRIGHT: CASES AND MATERIALS
EXAMPLE 2: A two-dimensional work of a three-dimensional
work.
SHL Imaging, Inc. v. Artisan House, Inc. 56 U.S.P.Q. 2d 1813 (U.S.: District
Court, S.D. New York, 2000)
[The plaintiff was hired by the defendant to photograph the defendant’s stock
of mirrored frames and to produce from them colour slides for use by the
defendant’s sales force. Lindner, the owner of the plaintiff company, produced
photos of about 130 different frames and was duly paid. The defendant used
many of the photographs in a catalogue, in brochures, and as publicity shots
for the news media. It also scanned them into a computer for manipulation and
display to customers. The plaintiff, which had not consented to these additional
uses, sued for copyright infringement. The defendant claimed the photographs
were not original.]
JUDGE PAULEY:
The Supreme Court’s most recent and authoritative pronouncement on originality is in Feist
Publications Inc. v. Rural Telephone Service Co. Inc.... (1991) [see Compilations, below, in
this Casebook]. In Feist, the Court rejected the proposition that works are protectible so long as
they were born from “sweat of the brow,” reaffirming that “[o]riginality is a constitutional
requirement.” ... The Court also cautioned that it is not difficult to satisfy the originality
requirement; an author need only independently create the work and imbue it with “some
minimum level of creativity,” a “creative spark.” ... The “spark need not provide a shock, but it
must at least be perceptible to the touch.” ...
Judge Learned Hand observed that “no photograph, however simple, can be unaffected by the
personal influence of the author, and no two will be absolutely alike.” ...
There is no uniform test to determine the copyrightability of photographs. ...The technical
aspects of photography imbue the medium with almost limitless creative potential. For instance,
the selection of a camera format governs the film size and ultimately the clarity of the negative.
Lenses affect the perspective. Film can produce an array of visual effects. Selection of a fast
shutter speed freezes motion while a slow speed blurs it. Filters alter color, brightness, focus and
reflection. Even the strength of the developing solution can alter the grain of the negative. ...
Lindner carefully chose to use single light source with a “reflector to fill out the shadows” in
order to “give a chiaroscuro effect that would wrap around the [the frames] and give [them]
depth.” He used this lighting technique because “copy lighting” would “wash out the shadows
and impart a flat look.” Lindner also employed artistic judgment in determining the amount of
shadowing for each individual frame that would emphasize the detail without obscuring it.
Reflections in the mirrors also complicated the shoot and led to the creation of a “unique light
design on a reflector that would appear in the mirror without showing any part of the room or
[himself] in the mirror.” ...
Lindner’s works ... show artistic judgment and therefore meet the Feiststandard. That the
photographs were intended solely for commercial use has no bearing on their protectibility. ...
[The photographs] are not entitled to broad copyright protection. Plaintiff cannot prevent others
from photographing the same frames, or using the same lighting techniques and blue sky
reflection in the mirrors. What makes plaintiff ’s photographs original is the totality of the precise
