by the United States Court of Appeals for the Seventh Circuit

“ The defendants’ second and more substantial argument is that it is not enough that Schrock’s photographs might pass the ordinary test for originality; they claim that as derivative works, the photos are subject to a higher standard of originality. A leading copyright commentator disagrees. The Nimmer treatise maintains that the quantum of originality required for copyright in a derivative work is the same as that required for copyright in any other work. ”

“ Whether Schrock could copyright his photographs and maintain an infringement action against the defendants depends on the contractual understandings between Schrock, Learning Curve, and HIT. Accordingly, we remand to the district court for further proceedings consistent with this opinion.
I. Background HIT is the owner of the copyright in the “Thomas & Friends” properties, and Learning Curve [1] is a producer and distributor of children’s toys. HIT and Learning Curve entered into a licensing agreement granting Learning Curve a license to create and market toys based on HIT’s characters. ”

“ The defendants’ argument seems to be that because images of its “Thomas & Friends” toys will be common to all product photos of the toys, no product photos can be copyrighted. If this were true, then no derivative work would be copyrightable; by definition, derivative works incorporate the underlying work in some way. ”

“ The Supreme Court emphasized in Feist that “the requisite level of creativity is extremely low; even a slight amount will suffice.” Id. The Court also explained that “ [o] riginality does not signify novelty; a work may be original even though it closely resembles other works.” Id. What is required is “independent creation plus a modicum of creativity.” Id. at 346.
Federal courts have historically applied a generous standard of originality in evaluating photographic works for copyright protection. ”

“ Novelty, Inc., 482 F.3d 910, 915 (7th Cir. 2007) , “copyright protection begins at the moment of creation of ‘original works of authorship,’ ” id. at 914. This principle applies with equal force to derivative works.
The leading treatise on copyright law confirms this basic understanding. “ [T] he right to claim copyright in a noninfringing derivative work arises by operation of law, not through authority from the copyright owner of the underlying work.” [7] 1 Nimmer on Copyright § 3.06, at 3-34.34. We have cited Nimmer with approval on this point. ”

“ In the meantime, Price Waterhouse turned to another consultant for assistance in improving its software program. The new consultant successfully increased the speed of the program, and Price Waterhouse incorporated these improvements into its software. Liu then sued Price Waterhouse for copyright infringement. Price Waterhouse counterclaimed for infringement and filed a third-party complaint against Yang for contributory infringement and various state-law claims sounding in misappropriation. ”

“ It is undisputed that Schrock was authorized to photograph the “Thomas & Friends” toys, and as the creator of the photos, Schrock’s copyright arose by operation of law. [8] We cannot tell, however, whether the parties altered this default rule in their agreements. We note that HIT apparently attempted to do so, at least vis-à-vis Learning Curve; it claims that its licensing agreement with Learning Curve expressly retained the intellectual-property rights in all works that were based upon its copyrights. ”

“ A. Photographs as Derivative Works Whether photographs of a copyrighted work are derivative works is the subject of deep disagreement among courts and commentators alike. See 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 3.03 [C] [1] , at 3-20.3 (Aug. 2009) . The district court held that Schrock’s photos came within the definition of derivative works because they “recast, transformed, or adapted” the three-dimensional toys into a different, two-dimensional medium. For this conclusion the judge relied in part on language in Gracen and in the Ninth Circuit’s decision in Ets-Hokin v. ”

“ N. Am. Philips Consumer Elecs. Corp., 672 F.2d 607, 616 (7th Cir. 1982) (mazes and tunnels in Atari’s PAC-MAN video game are common to this class of video games and are therefore scènes à faire and not copyrightable) . ”