The persistence of originality: Copying, creation, and the digital challenge

“ Digital technology has made it easier than ever to copy and reuse works that others have created, and it has made it easier than ever to create and share your own work. In short, copyright is everywhere. Since nearly every use of a work
For a brief introduction to the different types of intellectual property, watch the three-minute video How to Register a Trademark (Canada) : Trademarks, Patents and Copyrights – What’s the Difference? https://www.youtube.com/watch?v=IVYAOy466vs | CC BY 3.0
online involves making a copy, copyright law plays a role in nearly everything we do online. ”

“ The parties focus most of their energy in this case on the question whether Meshwerks' models qualify as independent creations, as opposed to copies of Toyota's handiwork. But what can be said, at least based on received copyright doctrine, to distinguish an independent creation from a copy? And how might that doctrine apply in an age of virtual worlds and digital media that seek to mimic the "real" world, but often do so in ways that undoubtedly qualify as (highly) original? ”

“ Applying these principles, evolved in the realm of photography, to the new medium that has come to supplement and even in some ways to supplant it, we think Meshwerks' models are not so much independent creations as (very good) copies of Toyota’s vehicles. In reaching this conclusion we rely on (1) an objective assessment of the particular models before us and (2) the parties' purpose in creating them. All the same, we do not doubt for an instant that the digital medium before us, like photography before it, can be employed to create vivid new expressions fully protectable in copyright. ”

“ In dramatic art, besides such imitation of real speech, this method consists in having all the accessories and all the people just like those in real life. In painting, this method assimilates painting to photography, and destroys the difference between them. And, strange to say, this method is used also in music: music tries to imitate, not only by its rhythm but also by its very sounds, the sounds which in real life accompany the thing it wishes to represent. ”

“ Photography is a reproduction; it becomes a betrayal. What is the copy interpreted by this betrayal? How can one extract the character of anything if the true model is not there?
“Here, then, is our engraver obliged to copy with his precise art from something quite vague. Photography sees the globs of color, the accidents of a picture, with as much interest as the most beautiful design. ”

“ The Court held that photographs were copyrightable creation of “authors” because they reflected creative choices by humans. Id. at 57–59. The then-copyright statute protected the creation of “authors” and the Court construed an “author” as “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature” and found that photographs were protected by copyright as “representatives of original intellectual conceptions of [an] author.” ”

“ Human creativity was essential: had the photograph been a “mere mechanical reproduction” that “involve [d] no originality of thought or any novelty in the intellectual operation,” then “copyright [would offer] no protection.” Id. at 59.
Contrary to Plaintiff’s argument, nothing in Sarony requires registration of the Work at issue in this case. Unlike the Work here, which Plaintiff claims was created “autonomously,” Dkt. 13-2 at US_0000001, the human photographer in Sarony made creative choices such as how he arranged the subject and altered the lighting of the scene. ”

“ Whether a photograph is a mere mechanical reproduction or an original work of art is a question to be determined by proof of the facts of originality, of intellectual production, and of thought and conception on the part of the author ”

“ The most common is that which gives imitation as its object. This is the foundation of nearly all the theories upon art. Now of what use to reproduce that which nature already offers to our view? This puerile talk, unworthy of spirit to which it is addressed, unworthy of man who produces it, would only end in the revelation of its impotency and the vanity of its efforts; for the copy will always remain inferior to the original. Besides, the more exact the imitation, the less vivid is the pleasure. That which pleases us is not imitation, but creation. ”

“ Would you not admit that both the sections of this division have different degrees of truth, and that the copy is to the original as the sphere of opinion is to the sphere of knowledge? ”

“ ORIGINALITY Originality is any conception of things, taken immediately from nature, and neither borrowed from, nor common to, others. To deserve this appellation, the copy must be both true and new. But herein lies the difficulty of reconciling a seeming contradiction in the terms of the explanation. For as any thing to be natural must be referable to a consistent principle, and as the face of things is open and familiar to all, how can any imitation be new and striking, without being liable to the charge of extravagance, distortion, and singularity? ”

“ The creation of the work which has resulted from little bit of skill, labour and capital are sufficient for a copyright in derivative work of an author. Decisions propounded a theory that an author deserves to have his or her efforts in producing a work, rewarded. The work of an author need not be in an original form or novel form, but it should not be copied from another’s work, that is, it should originate from the author. The originality requirement in derivative work is that it should originate from the author by application of substantial degree of skill, industry or experience. ”

“ Novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity. In our view, the aforesaid inputs put by the appellants in the copy-edited judgments do not touch the standard of creativity required for the copyright.
41. However, the inputs put in the original text by the appellants in (i) segregating the existing paragraphs in the original text by breaking them into separate paragraphs; (ii) adding internal paragraph numbering within a judgment after providing uniform paragraph numbering to the multiple judgments ”

“ Where a compilation is produced from the original work, the compilation is more than simply a re-arranged copyright of original, which is often referred to as skill, judgment and or labour or capital. The copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his skill, labour and investment of capital, maybe it is derivative work. The courts have only to evaluate whether derivative work is not the end-product of skill, labour and capital which is trivial or negligible but substantial. ”

“ For originality, the work is not required to contain novelty. The doctrine of “sweat of the brow”, rewarded compilers for their efforts in collecting facts with a de facto copyright to those facts and this doctrine would prevent, preclude the author absolutely from saving time and effort by referring to and relying upon prior published material. It extended copyright protection in compilation beyond selection and arrangement - the compiler’s original contribution – to the facts themselves drawn on “sweat of the brow” is a copyright protection to the facts discovered by the compiler. ”

“ The Court further held that no one claim originality as to the facts. 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. Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. ”

“ In reaching this conclusion, we do not for a moment seek to downplay the considerable amount of time, effort, and skill that went into making Meshwerks' digital wire-frame models. But, in assessing the originality of a work for which copyright protection is sought, we look only at the final product, not the process, and the fact that intensive, skillful, and even creative labor is invested in the process of creating a product does not guarantee its copyrightability. ”

“ It is the fate of all great men to copy. Blake says, ‘The difference between a bad artist and a good is that the bad artist seems to copy a great deal, and the good one does copy a great deal.’
Spending lots of time drawing after the antique and winning gold medals and certificates; fiddling over false niceties; trying to finish, when there is no such thing as finish in creation, far less in art; being so careful that they lose all freedom of action, freedom of thought, and produce nothing;—that is the rubbish they are turning out of the Government schools nowadays ”

“ Differing entirely from those ‘who have undertaken to write on the art of painting, and have represented it as a kind of inspiration, as a gift bestowed upon peculiar favourites at their birth,’ Sir Joshua proceeds to add, ‘I am, on the contrary, persuaded, that by imitation only,’ (that is, of former masters,) ‘variety and even originality of invention is produced. I will go further! even genius, at least what is generally called so, is the child of imitation.’ ‘There can be no doubt but that he who has most materials has the greatest means of invention ”

“ That image of truth and beauty, which existed in his mind, he was forced to construct for himself, without rules or models. As it had arisen in his mind from the contemplation of nature, so he could only hope to embody it to others, by the imitation of nature. We can conceive the work growing under his hands by slow and patient touches, approaching nearer to perfection, softened into finer grace, gaining strength from delicacy, and at last reflecting the pure image of nature on the canvass. Such is always the true progress of art ”

“ When first young Maro in his boundless mind, [130]
A work to outlast immortal Rome designed,
Perhaps he seemed above the critic's law
And but from nature's fountain scorned to draw
But when to examine every part he came
Nature and Homer were he found the same
Convinced, amazed, he checks the bold design
And rules as strict his labored work confine
As if the Stagirite o'erlooked each line [138]
Learn hence for ancient rules a just esteem,
To copy nature is to copy them. ”

“ In the latter, the artist is generally better satisfied with his effort when the picture is complete, than if he followed closely to the laborious work of perfectly copying that which is not altogether interesting. But at the same time the first, that of picturing facts, must form the basis of the art. By it we acquire a knowledge of detail, and store the mind with true nature, which is essential in good work. A true and faithful copy is what is sought after. ”

“ The public, perverted by academic prejudices, confounds art with neatness. The simplicity of the [Pg 62] 'École' is a painted cardboard ideal. A cast from life is a copy, the exactest possible copy, and yet it has neither motion nor eloquence. Art intervenes to exaggerate certain surfaces, and also to fine down others. In sculpture everything depends upon the way in which the modelling is carried out with a constant thought of the main line of the scheme, upon the rendering of the hollows, of the projections and of their connections ”

“ It doubles the effect of beauty, which is mere affectation without it, and even reconciles us to deformity. Nature, the truth of nature in imitation, denotes a given object, a ‘foregone conclusion’ in reality, to which the artist is to conform in his copy. In nature real objects exist, real causes act, which are only supposed to act in art; and it is in the subordination of the uncertain and superficial combinations of fancy to the more stable and powerful law of reality that the perfection of art consists. A painter may arrange fine colours on his palette ”

“ True originality consists not in a new manner but in a new vision. ”

“ After all however, good stones and well tempered tools apart, the one thing essential is the art, the intelligence, and the judgement of those who use them, for there is the 62greatest difference between artists, although they may all use the same method, as to the measure of grace and beauty they impart to the works which they execute. This enables us to discern and to recognize the perfection of the work done by those who really understand, as opposed to that of others who know less. ”

“ Originality is then nothing but nature and feeling working in the mind. A man does not affect to be original: he is so, because he cannot help it, and often without knowing it. This extraordinary artist indeed might be said to have had a particular organ for colour. His eye seemed to come in contact with it as a feeling, to lay hold of it as a substance, rather than to contemplate it as a visual object. The texture of his landscapes is ‘of the earth, earthy’—his clouds are humid, heavy, slow ”

“ I see in every exhibition glaring evidences of hay carts and field horses, yachts and ships of all degrees, blankly copied, with hardly any disguise, from the photographic studies suspended in the shop windows: clear photographic studies, faithfully drawn out, and in the painting knocked about a little, sometimes not so true as the original to nature, blurred and mystified into that obscurity which does for feeling with the crowd; the most original bit of painting being the man’s signature who sells it, that being strictly his own, and not the copyright of either the photographer or the horse. ”

“ The all-important surface is thus obliterated. As to design, fashion oscillates between copies of one past period and another. A comparison of one of these copies with an original will make the distinction between the work of a man paid to do his quickest and one paid to do his best clearer than volumes of description. Indeed, when all is said, a writer can but indicate the logic that underlies the craft, or hint at the relation which subsists between the process, the material, and the finished ware: the distinction between good and bad in art eludes definition ”

“ But if the esthetic value is independent of the imitative approach to reality and independent of the elimination of unpleasant elements or of the collection and addition of pleasant traits, what does the artist really select and combine in his creation? How does he shape the world? How does nature look when it has been remolded by the artistic temperament and imagination? What is left of the real landscape when the engraver's needle has sketched it? What is left of the tragic events in real life when the lyric poet has reshaped them in a few rhymed stanzas? ”

“ Meshwerks' models, which form the base layers of computerized substitutes for product photographs in advertising, are unadorned, digital wire-frames of Toyota's vehicles. While fully appreciating that digital media present new frontiers for copyrightable creative expression, in this particular case the uncontested facts reveal that Meshwerks' models owe their designs and origins to Toyota and deliberately do not include anything original of their own; accordingly, we hold that Meshwerks' models are not protected by copyright and affirm. ”

“ In so far as a thing is original, as it has never been done before, it acquires and it deserves the appellation of genius: in so far as it is not original, and is borrowed from others or taught by rule, it is not, neither is it called, genius. This does not make much for the supposition that genius is a traditional and second-hand quality. Because, for example, a man without much genius can copy a picture of Michael Angelo’s, does it follow that there was no genius in the original design, or that the inventor and the copyist are equal? ”