lighting selection, angle of the camera, lens and filter selection. In sum, plaintiff is granted
copyright protection only for its “incremental contribution.” ... Practically, the plaintiff ’s works
are only protected from verbatim copying. However, that is precisely what defendants did.EXAMPLE 3: A two-dimensional copy of another two-
dimensional work may sometimes not be original.Merely reprinting a book, without making any changes or any substantial
changes, does not create a copyright in the new edition. For the new edition to
have copyright, there must be enough additional “original” new work done. If
the first work was out of copyright, copyright will exist in the “original” changes,
but the first work without the changes remains out of copyright. So in Hogg v.
Toye & Co. Ltd [1935] Ch. 497 (U.K., Court of Appeal), a plaintiff had sued
on a reprint, with minor changes, of an earlier book. The court dismissed her
claim, one judge saying:An edition which contains no substantial alteration and therefore is a mere reprint in
substance of an old edition [is] not entitled ... to any copyright whatsoever so far as
that edition was concerned. ... [T]here being no originality in the reprint, and no
copyright being obtained under s. 1 [of the Copyright Act 1911 U.K.] in a literary
work, unless it is an original literary work, the plaintiff in the present case [fails.]How this applies to photographs of two-dimensional work (e.g., another
photograph or a painting) is controversial. Does there have to be a “substantial
alteration” between the second photograph and the work that it copies? Or is
it enough – as is the case with turning a two-dimensional work into a 3-
dimensional one or vice versa– that there is enough judgment, skill and labour
in making an exact transposition?The following case adopts the former test:Bridgeman Art Library Ltd v. Corel Corp., 36 F. Supp. 2d 191 (U.S.: District
Court, S.D. New York, 1999)[The plaintiff’s business comprised making photographic transparencies of Old
Masters paintings in the public domain. The defendant copied thousands of the
plaintiff’s transparencies on to a CD-ROM for public sale. The question was
whether the plaintiff’s transparencies had copyright under either U.K. or U.S.
law. The Court decided that, under both laws, the plaintiff’s photographs were
not “original” and thus had no copyright.]JUDGE KAPLAN:In this case, plaintiff by its own admission has labored to create “slavish copies” of public
domain works of art. While it may be assumed that this required both skill and effort, there was
no spark of originality – indeed, the point of the exercise was to reproduce the underlying works
with absolute fidelity. Copyright is not available in these circumstances. ...[P]laintiff ’s copyright claim would fail even if the governing law were that of the United
Kingdom. ... Laddie, a modern British copyright treatise the author of which now is a
distinguished British judge, discusses the issue at bar in a helpful manner:
36