by the United States Court of Appeals for the Ninth Circuit

“ Here there is no dispute over the independent creation of the photographs—they are the result of Ets-Hokin's work alone—so what we must decide is whether the photographs of Skyy's vodka bottle possess "at least some minimal degree of creativity."
Feist, which involved listings in a telephone directory, described the requisite degree of creativity as "extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, `no matter how crude, humble or obvious' it might be." ”

“ We understand Nintendo’s argument; consumers clearly would not purchase the Game Genie if its display was not “sufficiently permanent or stable to permit it to be perceived ... for a period of more than transitory duration.” 17 U.S.C. § 101. But, Nintendo’s reliance on the Act’s definition of “fixed” is misplaced. Nintendo’s argument also proves too much; the existence of a market does not, and cannot, determine conclusively whether a work is an infringing derivative work. ”

“ Appellants were not forced into a position of having to predict whether their interests would be adequately represented. They could determine whether there had been adequate representation of their interests by reviewing the terms of the settlement. If they were dissatisfied, they could opt out of the class. This opportunity to opt out after knowing the terms of a proposed settlement is unusual in the class action context and serves to protect the interests of class members. ”

“ These applications, as well as countless others, could not be produced and marketed if courts were to conclude that the audiovisual display of a word processor and spell-checker combination is a derivative work based on the display of the word processor alone. The Game Genie is useless by itself; it can only enhance, and cannot duplicate, a Nintendo game’s output. Such innovations rarely will constitute derivative works under the Copyright Act. ”

“ Burrow-Giles, a landmark case involving a photograph of Oscar Wilde, is the first of a line of cases establishing that photography entails creative expression warranting copyright protection, that photography is "an art," and that an individual photograph may be a "work of art." ”

“ Maintenance as a Class Action Appellants argue that there were conflicts of interest among the plaintiffs such that no single class action could be maintained. They base this contention on the fact that in at least one case, participating distributors were sued along with Holiday Magic. They argue that adequate representation by a single lead counsel was impossible because of these intra-class conflicts. ”

“ Certainly works are not the less connected with the fine arts because their pictorial quality attracts the crowd and therefore gives them a real use—if use means to increase trade and to help to make money. A picture is none the less a picture and none the less a subject of copyright that it is used for an advertisement. ”

“ According to Stephen Beck, Galoob’s expert witness, junior or expert versions of existing Nintendo games would enjoy very little market interest because the original version of each game already has been designed to appeal to the largest number of consumers. Mr. Beck also testified that a new game must include new material or “the game player is going to feel very cheated and robbed, and [the] product will have a bad reputation and word of mouth will probably kill its sales.” ”

“ This is an appeal from a court approved settlement of class actions against Holiday Magic, Inc., certain of its affiliated corporations, and individual defendants. The settlement is a final judgment entered pursuant to Fed.R.Civ.P. 54 (b) .
Appellants, who were sued as defendants in one case and filed as cross-plaintiffs, argue that the district court abused its discretion by approving the settlement. They claim there was inadequate representation and notice and that the settlement itself was unreasonable. We disagree and therefore affirm. ”

“ The Game Genie is a device manufactured by Galoob that allows the player to alter up to three features of a Nintendo game. For example, the Game Genie can increase the number of lives of the player’s character, increase the speed at which the character moves, and allow the character to float above obstacles. The player controls the changes made by the Game Genie by entering codes provided by the Game Genie Programming Manual and Code Book. ”

“ Appellees argue that appellants lack standing because they are neither members of the plaintiff class nor settling defendants. Thus appellees contend, they have no interest in the judgments. However, the class as determined by the district court consisted of all distributors and security holders of Holiday Magic. Appellants fall into this category and received notice as members of this plaintiff class. As members of the class, their legal rights are affected by the settlement and they have standing to sue. ”

“ The Skyy vodka bottle, although attractive, has no special design or other features that could exist independently as a work of art. It is essentially a functional bottle without a distinctive shape.
Turning next to the bottle's label, which the district court also cited in part in categorizing Ets-Hokin's photos as derivative works, we note that " [a] claim to copyright cannot be registered in a print or label consisting solely of trademark subject matter and lacking copyrightable matter." ”

“ Nintendo’s argument is supported by case law. Although the Copyright Act requires a court to consider “the effect of the use upon the potential market for or value of the copyrighted work,” 17 U.S.C. § 107 (4) (emphasis added) , we held in Abend that “although the motion picture will have no adverse effect on bookstore sales of the [underlying] novel—and may in fact have a beneficial effect—it is ‘clear that [the film’s producer] may not invoke the defense of fair use.’” 863 F.2d at 1482 (quoting 3 Nimmer on Copyright § 13.05 [B] , at 13-84) . ”

“ All of the class action cases except one included as a plaintiff class all of the distributors, whether or not they profited from the scheme. In Frank I. Marshall and Howard S. Myers v. Holiday Magic, Inc., et al., Civil Action No. 72-899, W.D.Pa., 1972, *1176 however, the distributors who had participated in the process by earning fees were named as a defendant class, and appellants were sued as representatives of that class. They filed a cross-claim against Holiday Magic. ”

“ Under the related doctrine of scenes a faire, courts will not protect a copyrighted work from infringement if the expression embodied in the work necessarily flows from a commonplace idea; like merger, the rationale is that there should be no monopoly on the underlying unprotectable idea. ”

“ Facts The Nintendo Entertainment System is a home video game system marketed by Nintendo. To use the system, the player inserts a cartridge containing a video game that Nintendo produces or licenses others to produce. ”

“ A work is ‘created’ when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work. ”

“ Continued upward mobility in the hierarchy depends on an infinite supply of distributors.
Approximately 25 actions were filed against Holiday Magic and various affiliated defendants across the country. Eighteen of these suits purported to be class actions asserting claims under the securities and antitrust laws. Most of these actions were transferred to the Northern District of California (which already had six of them) and assigned to Judge Burke by the Judicial Panel on Multidistrict Litigation, pursuant to 28 U.S.C. s 1407. ”

“ The parties dispute the scope of the license, including whether Skyy was licensed to use the photographs in advertising or in publications distributed to the public. After the confirmation was executed, Ets-Hokin applied to the U.S. Copyright Office for a certificate of registration for his series of photos, and a certificate was issued effective on March 10, 1995. Section six of the registration form, which instructs the applicant to " [c] omplete both space 6a & 6b for a derivative work," was left blank. ”

“ Facts Holiday Magic is a cosmetic company which distributes its product via a "pyramid sales" scheme. Distributorships are purchased from the corporation and arranged in a hierarchy. Those at higher levels earn larger profits, thereby encouraging all participants to enlist other distributors into the plan. ”

“ And if pictures may be used to advertise soap, or the theatre, or monthly magazines, as they are, they may be used to advertise a circus. Id. at 251. Thus, whether a photograph is used in (or intended for) a museum, an art gallery, a mural, a magazine, or an advertisement does not bear on its copyrightability. ”

“ In fact, many photographers, most notably Matthew Brady, attained notoriety for their graphic depictions of battle on the front lines; Brady's photographs were some of the first registered for copyright. Id. at 248 n.560. Some twenty years later, the Supreme Court held the statute constitutional. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884) (" [T] he Constitution is broad enough to cover an act authorizing copyright of photographs, so far as they are representatives of original intellectual conceptions of the author.") . ”

“ Appellants now are playing spoilers. The court in Mandujano recognized that specific responses to objections in such an instance were unnecessary. Id. at 836. We believe that the failure of the district court to give detailed responses to appellants' objections does not call for throwing out a settlement in a complicated lawsuit for a class of more than 31,000 people.
Conclusion The judgment of the district court is AFFIRMED.
KENNEDY, Circuit Judge, concurring:
In every class action, the attorney for the class owes the duty of fair representation to each class member. ”

“ L. Rev. 1633, 1635 (1990) . Some time ago, for example, computer companies began marketing spell-checkers that operate within existing word processors by signalling the writer when a word is misspelled. ”

“ The same can be said of countless other products that enhance, but do not replace, copyrighted works.
Nintendo relies heavily on Midway Mfg. Co. v. Artic Int'l, Inc., 704 F.2d 1009 (7th Cir.) , cert. denied, 464 U.S. 823 (1983) . Midway can be distinguished. The defendant in Midway, Artic International, marketed a computer chip that could be inserted in Galaxian video games to speed up the rate of play. The Seventh Circuit held that the speeded-up version of Galaxian was a derivative work. Id. ”

“ McKee, 431 F.2d 769, 774 (9 Cir. 1970) , cert. denied, 401 U.S. 912, 91 S.Ct. 879, 27 L.Ed.2d 811 (1971) . This court on appeal will reverse those findings only upon a clear showing of an abuse of discretion. Grunin v. International House of Pancakes, 513 F.2d 114, 123 (8 Cir.) , cert. denied, 423 U.S. 864, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975) ; State of West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1085 (2 Cir.) , cert. ”