by the United States Court of Appeals for the Ninth Circuit

“ 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. ”

“ 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." ”

“ 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. ”

“ 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. ”

“ 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.") . ”