Wikilegal/Sweat of the Brow

From Meta, a Wikimedia project coordination wiki
Jump to: navigation, search
Information icon.svg Note: This page shares the Wikimedia Foundation’s preliminary perspective on a legal issue. This page is not final - if you have additional information, or want to provide a different perspective, please feel free to expand or add to it.

Please Remember - This Is Not Legal Advice!

  • This page may not be accurate, and may fall out of date over time.
  • The purpose of these pages is to present the Wikimedia Foundation's perspective on an issue. However, because these pages may be edited and updated by the community, they may not continue to represent the viewpoints of the Wikimedia Foundation.
  • The legal team can only represent the Wikimedia Foundation on legal matters, so if you feel you need personal legal advice, please contact a lawyer.
  • Because the legal team represents the Foundation, we cannot provide consultations with community members. Contacting the legal team does not create an attorney-client relationship, or any of the duties that come with such a relationship, such as confidentiality.

For more information on this disclaimer, see here.

The concept of sweat of the brow in U.S. Copyright law often comes up in community discussions about the copyrightability of content. The Commons PD-Art policy and PD-Scan guideline give great guidance for particular scenarios, but are limited in their scope of discussion and depth of explanation. To best aid the community in recognizing what is and is not in the public domain, the following article will first provide an overview of copyright protection and then discuss the true impact of the demise of sweat of the brow.

Introduction[edit]

Also known as “industrious collection,” the sweat of the brow doctrine in U.S. Copyright law provided copyright protection to works based entirely on collections of facts and ideas, such as directories, and extended that protection to the facts and ideas themselves because of the labor involved in collecting those facts.[1] The resulting copyright would not prevent others from using the facts, but would require them to collect them separately.[2] In 1991, this doctrine was rejected by the U.S. Supreme Court in Feist Publications Inc. v. Rural Telephone Service Co., Inc.[3] In 1999, the federal court for the Southern District of New York (S.D.N.Y.) applied the Feist creativity standard to reproductions of art in Bridgeman Art Library, Ltd. v. Corel Corp, extending the sweat of the brow language to a case outside the usual bounds of the sweat of the brow doctrine.[4]

The sweat of the brow doctrine relates directly to the concept of originality and the scope of copyright protection.[5] Accordingly, it is important to understand what originality means and what copyright actually protects to best understand the effect of the Feist and Bridgeman decisions.

Copyright Protection: Requirements and Restrictions[edit]

Federal copyright power derives from the Constitution's Copyright Clause, which authorizes the “securing for limited Times to Authors . . . the exclusive Right to their respective Writings.”[6] This authority goes beyond mere writings; the Supreme Court has long held that Congress can statutorily protect any works “so far as they are representatives of original intellectual conceptions of the author.”[7] Accordingly, the Copyright Act of 1976 (17 U.S.C. §§ 101-810) introduced the clarifying term “original works of authorship.”[8]

Under 17 U.S.C. § 102(a), a work only qualifies for protection if it is an original work of authorship fixed in some perceivable way, regardless of whether it can be perceived on its own or requires a device, including: “(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.”[9]

Under 17 U.S.C. § 102(b), that protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”[10]

Originality[edit]

Originality is a constitutionally mandated element of copyright.[11] The phrase “original works of authorship” emphasizes that copyright protection extends to all “fruits of intellectual labor[12] crafted by an author (i.e. the person “to whom anything owes its origin; originator; maker”[13]) if such fruits are “original, and are founded in the creative powers of the mind.”[14] So in the context of copyright, originality refers to two elements: (1) independent creation “by the author (as opposed to copied from other works)” and (2) “at least some minimal degree of creativity.”[15]

Independent Creation[edit]

Independent creation is required for a work of authorship, but that does not mean the work must be novel or truly unique. The Supreme Court clarified this distinction in Feist by stating that “a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.”[16] For instance, if a person were to create an exact replica of a great work of art without previous knowledge of the work of art, then the replica would be an independent creation.[17] Simply put, this first aspect of originality is fulfilled by the efforts of the author to make something new, even if it is simply a variation of something old.[18]

Creativity[edit]

Originality requires both independent creation and a “modicum of creativity.”[19] Creativity refers to the minimum amount of independent thought and conception that makes a work copyrightable.[20] This required amount of creativity is “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 [sic] or obvious' it might be.”[21]

The amount of creativity required is merely a “spark of distinctiveness,” not ingenuity or novelty.[22] Most often, courts only give examples of what fails to qualify instead of providing a clear standard for qualification. For example, the Supreme Court in Feist established that, while distinctive choices as minimal as the arrangement of facts would suffice for creativity, arranging those facts in ways set by industry standard, legal requirement, or general convention (in this case, alphabetically) would not suffice.[23] The minimal creativity standard serves to separate protectable expressions from unprotectable ideas.

The Idea/Expression Divide[edit]

Copyright does not protect ideas or facts.[24] It only protects the author's expression of ideas.[25] This divide is guaranteed by the First Amendment, balancing copyright law to allow “the free communication of facts while still protecting an author's expression.”[26]

This concept is relatively simple when applied to works directly portraying facts or ideas. Regardless of “how much original authorship the work displays, the facts and ideas it exposes are free for the taking . . . even if the author was the first to discover the facts or to propose the ideas.”[27] For example, a person can't use an illustration of an atomic model right out of a book, but they may make their own version of the diagram as it portrays “scientific reality.”[28] Similarly, a person can't just use another's photograph of a mountain without permission, but they would be free to go take a picture from the same spot.[29]

The dividing line is less clear in works where the expression and the idea are closely linked.[30] In such cases, courts often have to determine whether the similarities between works are due to one having copied the other's expression of an idea (e.g. selling a close knock-off of a Barbie doll) or just due to the borrowing of the basic idea (e.g. creating a doll “depicting a young, fashion-forward female with exaggerated features”).[31] The evaluation of substantial similarities is a very detailed topic in its own right. For these purposes, it is enough to know the basic principle that only expressions, not facts or ideas, are protectable by copyright.

Broadness of Copyright Protection[edit]

Though copyrighted works are protected from wholesale copying (e.g. printing a new cover and selling as one's own work), only the expressions independently created by the author are individually protected.[32] If a large amount of the work is protected (e.g. an abstract painting of pure expression), the copyright is considered broad; if a small amount is protected (e.g. a list of people in a non-standard order), the copyright is considered thin.[33]

Unfortunately, a copyright does not usually come with its broadness labeled, but there are some guidelines. Because only the independent expressions of the author are protected and because choices made by necessity are not creative, the breadth of protection is closely linked to the range of possible choices.[34] The Ninth Circuit's explanation in the Barbie doll case helps clarify the extent of this range:

If there's a wide range of expression (for example, there are gazillions of ways to make an aliens-attack movie), then copyright protection is “broad” and a work will infringe if it's “substantially similar” to the copyrighted work. If there's only a narrow range of expression (for example, there are only so many ways to paint a red bouncy ball on blank canvas), then copyright protection is “thin” and a work must be “virtually identical” to infringe.[35]

Derivative Works and Compilations[edit]

Even though derivative works are works directly based on preexisting works, such as edits, annotations, or elaborations, and compilations are works assembled from preexisting works and uncopyrightable factual data, both must represent original works of authorship to gain copyright protection.[36] This is possible because (1) the derivative work or compilation must change the underlying, preexisting work enough to be distinguishable;[37] and (2) the copyright only extends to those new contributions.[38] Basically, without some amount of independent creation, it is only a copy.[39] Further, derivative works and compilations only receive copyright protection if they lawfully use preexisting works.[40] Because a copyright holder has the exclusive right to make or authorize works that derive from their copyright, a license to produce derivative works must be obtained if the underlying, preexisting work is still protected by copyright.[41]

Reproductions of pictorial, graphic, and sculptural art are a specifically recognized class of copyrightable derivative works.[42] However, distinguishing between copies and protectable reproductions can be difficult. The creativity requirement is fulfilled by the underlying work of art, but the reproduction must still have enough independent creation to be a distinguishable work of authorship.[43]

For instance, slavish copying of a work in the same or different medium (e.g. making a precise photographic copy of an entirely two-dimensional piece of art) fails because if the copying is successful, it's a copy.[44] Similarly, creating a precise, three-dimensional, wire-frame model of an existing three-dimensional object is intentionally unoriginal.[45] On the other hand, modest independent creation by adding new dimension to or altering the aesthetic quality of the underlying work can be sufficient to provide copyright protection, for example by creating a mezzotint engraving of a work of art[46] or by giving three-dimensional elements to a two-dimensional work of art through embroidery.[47]

Sweat of the Brow[edit]

Rise and Fall – Feist v. Rural[edit]

Also known as “industrious collection”, the sweat of the brow doctrine was a method of copyright qualification, used in a minority of jurisdictions, where the creator of a compilation would gain full copyright in the work based solely on the labor expended by the collector.[48] The doctrine was based on a misreading of the 1909 Copyright Act, which explicitly protected compilations in §5 but did not explicitly incorporate the originality requirement (though it did use the “author” and “writings” terms which had already been interpreted by the Supreme Court to require originality).[49]

It not only ignored the originality requirement, but also circumvented the idea/expression divide, requiring any subsequent compiler to “independently wor[k] out the matter for himself, so as to arrive at the same result from the same common sources of information.”[50] Even after the implementation of the 1976 Copyright Act, which directly excluded ideas from copyright,[51] and regardless of contrary rulings,[52] some courts continued to extend full protection to works and their sources based on the industry of the collector until 1991.[53]

The 1991 Feist decision reversed[54] the U.S. District Court of Kansas and the 10th Circuit Court of Appeals, who had found and affirmed[55] that Feist had infringed Rural's copyright by incorporating information from Rural's alphabetized white pages into Feist's regional phonebook.[56] The Supreme Court acknowledged the tension between uncopyrightable facts and copyrightable compilations of facts and resolved that the difference is due to the originality in selection, coordination, or arrangement of facts, emphasizing that such protection does not extend to the underlying facts.[57] In doing so, the Court directly clarified that originality alone “is the touchstone of copyright protection in directories and other fact-based works.”[58]

Afterlife – Bridgeman v. Corel[edit]

The sweat of the brow doctrine was seemingly given a post-mortem expansion in 1999, when Bridgeman v. Corel applied the term in an art reproduction case, beyond its original reference to copyright in collections of uncopyrightable facts. The court uses the words “sweat of the brow” a single time while invoking the Feist originality standard.[59] In doing so, Bridgeman expanded the “sweat of the brow” phrase to be a shorthand for the originality standard Feist used to lay the sweat of the brow doctrine to rest.[60] Unfortunately, this can give a false impression of the real impact of Feist and, in fact, Bridgeman itself.

The Bridgeman Decision[edit]

Bridgeman actually refers to two decisions in S.D.N.Y., one in 1998 and one in 1999.[61] Both cases involved the same complaint: the Bridgeman Art Library claimed that the Corel Corporation infringed their copyright in photographic reproductions of public domain work of art.[62] In the first Bridgeman v. Corel decision, the court avoided analysis of whether Corel in fact copied the Library's photos by determining that, under U.K. law, the photos were insufficiently original to obtain copyright protection.[63] Afterwards, the court “was bombarded with additional submissions” in reaction to the case, causing the court to reevaluate its decision.[64]

When Bridgeman was revisited in 1999, the court found that it had erred in applying U.K. law, but that the ruling was the same under U.S. law.[65] Because the photographs purposely represented a perfect two-dimensional copy of a two-dimensional work of art, the court determined that the photographs were insufficiently distinct to be anything more than a copy.[66] The only intentional changes were the medium[67] and the addition of color bars (which, though new, only existed to ensure that the copy would genuinely reflect the preexisting work).[68]This decision is consistent with our discussion of independent creation and minimal creativity above as it addresses not only the intent of the creator (to make a new work or to make a perfect copy) but also the distinctiveness required for a derivative work.

Midway through a paragraph about the originality of derivative art reproductions, the Bridgeman court correctly invoked the Feist originality standard, but used the “sweat of the brow” language in the process.[69] While clarifying that the technical and creative aspects of photography do not override the need for a derivative work to be distinguishable from its source, the Bridgeman court inserted the following: “As the Supreme Court indicated in Feist, 'sweat of the brow' alone is not the 'creative spark' which is the sine qua non of originality.”[70] The closest Feist comes to making this statement is: “In summary, the 1976 revisions to the Copyright Act leave no doubt that originality, not “sweat of the brow,” is the touchstone of copyright protection in directories and other fact-based works.”[71] Though the decision accurately and correctly holds that the Feist originality standard applies to all works, Bridgeman uses the “sweat of the brow” words outside the context of the industrious collection/sweat of the brow doctrine.[72]

Effect and Limitations of Bridgeman[edit]

As a trial court decision, Bridgeman is only binding in S.D.N.Y.[73] Outside of S.D.N.Y., the case has rarely been cited,[74] though its general logic was followed by the Tenth Circuit in Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc. in determining whether digital three-dimensional copies of three-dimensional objects were copyrightable.[75] Notably, Meshwerks makes no mention of the sweat of the brow doctrine, instead taking from Bridgeman that “where 'the point of the exercise was to reproduce the underlying works with absolute fidelity,' the 'spark of originality' necessary for copyright protection was absent.”[76]

Bridgeman itself only applies in the situation of an exact photographic reproduction of a two-dimensional work shot with no angle and no shadow,[77] where the photographer is acting as a human photocopier.[78] In the same spirit, Meshwerks only applies in the case of unadorned three-dimensional digital copies of three-dimensional objects absent “unique shading, lighting, angle, background scene, or other choices.”[79] These decisions do not expand the public domain to include any image or model based on a public domain work; they simply uphold the basic copyright requirement that a work is “independently created by the author (as opposed to copied from other works) and that it possesses at least some minimal degree of creativity.”[80]

Introducing the industrious collection/sweat of the brow doctrine of compilations confuses the issue because works of authorship are the “fruits of intellectual labor.”[81] If Feist stands for the idea that facts do not become copyrightable just because one works hard at collecting them,[82] Bridgeman stands for the idea that a copy is a copy regardless of medium, while clearly maintaining that “many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection.”[83]

Examples[edit]

Photographs[edit]

As described in the Commons PD-Art policy and PD-Scan guideline, a photograph (or scan) of a public domain, two-dimensional work of art that appears to faithfully reproduce that piece of art is likely not copyrightable.[84] Pictures which include more than a direct reproduction of the work of art (e.g. showing it from an indirect angle, under non-standard lighting, through image altering filters, or showing the work of art within a greater scene) are likely copyrightable.[85]

Sound Recordings[86][edit]

Sound recordings are works, often derivative,[87] that “result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects . . . in which they are embodied.”[88] As such, their copyright protection only covers the fixed sounds separate from the underlying work,[89] even if the underlying work is completely new (e.g. recording a totally improvised song creates both musical work and sound recording copyrights).

Sound recordings can be original due to the performance captured, the choices of the record producers in setting up, capturing, and processing the sounds, or both.[90] This allows the creative choices which affect the resulting sound, such as selecting what equipment, settings, and levels are used for recording,[91] or the choices involved in editing/compiling the recorded sounds[92] to provide the independent creation and creativity required for copyright.

For a sound recording to completely fail in reaching minimum originality would essentially require a recording with no creative choices and no human performance (such as nature sounds captured by pressing start on a tape recorder).[93] In the vast majority of cases, the sounds of a sound recording are copyrightable, regardless of whether or not they are recordings of public domain works.

Conclusion[edit]

The sweat of the brow doctrine died in the 1991 Feist decision, which solidified that originality in copyright requires independent creation and a modicum of creativity.[94] In 1999, Bridgeman confirmed that the Feist originality standard applied outside of the sweat of the brow doctrine, in this case to two-dimensional reproductions of two-dimensional works exact in everything but medium.[95] In 2008, Meshwerks extended that logic to three-dimensional reproductions of three-dimensional works.[96]

Unfortunately, all works must be evaluated on a case-by-case basis. Bridgeman and Meshwerks give good guidance in some limited circumstances (as integrated into the PD-Art policy and PD-Scan guideline), but nothing is clear cut in copyright law and care must be taken when posting anyone else's work. If anyone doubts whether they should be upload such a file, they should consult an attorney.

References[edit]

  1. Feist Publications Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 351-353 (1991) (hereinafter Feist).
  2. Id. at 353.
  3. Id. at 340-364
  4. Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) (hereinafter Bridgeman 2).
  5. E.g. Feist, 499 U.S. at 351-353.
  6. United States Constitution, Article I, § 8, cl. 8.
  7. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).
  8. Feist, 499 U.S. at 355.
  9. 17 U.S.C. § 102(a) (1990).
  10. 17 U.S.C. § 102(b) (1990).
  11. Feist, 499 U.S. at 346.
  12. Trade-Mark Cases, 100 U.S. 82, 94 (1879) (“The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like.”) (emphasis in original).
  13. Burrow-Giles, 111 U.S. at 58.
  14. Trade-Mark Cases, 100 U.S. at 94 (“And while the word writings may be liberally construed, as it has been, to include original designs for engravings, prints, &c., it is only such as are original, and are founded in the creative powers of the mind.”) (emphasis in original).
  15. Feist, 499 U.S. at 345.
  16. Id.
  17. See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936), aff'd, 309 U.S. 390 (1940) (“if by some magic a man who had never known it were to compose anew Keats' Ode On a Grecian Urn, he would be an 'author'”).
  18. See 1 M. Nimmer & D. Nimmer, Copyright § 2.01 [B] (2012) (“Any 'distinguishable variation' of a prior work will constitute sufficient originality to support a copyright if such variation is the product of the author's independent efforts, and is more than merely trivial.”) (hereinafter Nimmer).
  19. E.g., Feist, 499 U.S. at 346 (“[O]riginality requires independent creation plus a modicum of creativity . . .”).
  20. See Id. at 346-347 (“[The Court] described copyright as being limited to 'original intellectual conceptions of the author,' and stressed the importance of requiring an author who accuses another of infringement to prove 'the existence of those facts of originality, of intellectual production, of thought, and conception.'”) (quoting The Trade-Mark Cases, 100 U.S. at 59-60).
  21. Id. at 345. For more on creative qualification, see Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903), including Justice Holmes' summation that: “It would be a dangerous undertaking for persons trained only to the law to constitute themselves judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”
  22. 1 Nimmer § 2.01 [B].
  23. Feist, 499 U.S. at 362-363.
  24. 17 U.S.C. § 102(b). See, e.g., Harper & Row Publisher, Inc. v. Nation Enterprises, 471 U.S. 539, 556 (1985) (“No author may copyright his ideas or the facts he narrates.”).
  25. Id. at 556-557 (“But copyright assures those who write and publish factual narratives . . . may at least enjoy the right to market the original expression contained therein as just compensation for their investment.”).
  26. Harper & Row, 471 U.S. at 556 (quoting Harper & Row Publisher, Inc. v. Nation Enterprises, 723 F.2d 195, 203 (1983)); 1 Nimmer § 1.10 [B][2].
  27. Feist, 499 U.S. at 349 (citing Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 Colum.L.Rev. 1865, 1868, and n. 12 (1990)).
  28. Ho v. Taflove, 648 F.3d 489, 498 (7th Cir. 2011); see also 1 Nimmer § 2.03 [D].
  29. 1 Nimmer § 2.08 [E][1] (“Of course, copyright in the photograph conveys no rights over the subject matter conveyed in the photograph. Although two photographs of the same sculpture of necessity will portray the carved figure in the same pose, that fact alone gives rise to no imputation of infringement.”).
  30. See 4 Nimmer § 13.03 [B][2] (“[E]ven if the plots of the two works are substantially similar, there is no liability if the trier of fact reasonably concludes that defendant copied only the basic idea, and independently created a similar plot.”).
  31. Mattel, Inc. v. MGA Entm't. Inc., 616 F.3d 904, 915 (2010). See generally 4 Nimmer §13.03.
  32. Feist, 499 U.S. at 348 (“The mere fact that a work is copyrighted does not mean that every element of the work may be protected.”).
  33. See 4 Nimmer § 13.03 [A][4].
  34. Id.
  35. Mattel, 616 F.3d at 913-914 (citation omitted).
  36. 17 U.S.C. § 101 (2010) (“. . . a work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work.'”).
  37. 1 Nimmer § 3.03 [A].
  38. 17 U.S.C. § 103(b) (1976). See Feist, 499 U.S. at 349 (“This inevitably means that the copyright in a factual compilation is thin.”); Warren Publ. v. Microdos Data Corp., 115 F.3d 1509, 1515 n.16 (11th Cir. 1997) (“A creative work is entitled to the most protection, followed by a derivative work, and finally by a compilation. This is why the Feist Court emphasized that the copyright protection in a factual compilation is 'thin'.”).
  39. 1 Nimmer § 3.03 [A] (“However, in order to qualify for a separate copyright as a derivative or collective work, the additional matter injected in a prior work, or the manner of rearranging or otherwise transforming a prior work, must constitute more than a minimal contribution.”).
  40. 17 U.S.C. § 103(a) (“The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.”).
  41. 17 U.S.C. § 106 (2002) (“[T]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following: . . . (2) to prepare derivative works based upon the copyrighted work; . . . .”).
  42. 17 U.S.C. § 102(a)(5) (“Pictorial, graphic, and sculptural works,” defined in 17 U.S.C. § 101 to include “prints and art reproductions.”).
  43. 1 Nimmer § 2.08 [C][3] (“[A] work of art must evince some creativity, while a reproduction of a work of art need not contain any creativity other than that that is inherent in the underlying work of art of which it is a reproduction. That is, the contribution made by the copyright claimant of the reproduction need not constitute creativity, although it must constitute originality.”).
  44. E.g., Bridgeman Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421, 427 (S.D.N.Y. 1998), modified, 36 F. Supp. 2D 191 (S.D.N.Y. 1999) (“[I]ndeed, the point of the exercise was to reproduce the underlying works with absolute fidelity. Copyright is not available in these circumstances.”) (hereinafter Bridgeman 1).
  45. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.2d 1258 (10th Cir. 2008).
  46. Home Art, Inc. v. Glensder Textile Corp., 81 F. Supp. 551 (S.D.N.Y. 1948); Peter Pan Fabrics, Inc. v. Kay Windsor Frocks, Inc., 32 Copyright Office Bull. 402 (S.D.N.Y. 1948).
  47. Millworth Converting Corp. v. Slifka, 276 F.2d 443 (2d Cir. 1960).
  48. See, e.g., Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484 (9th Cir. 1937); Jeweler's Circular Publishing Co. v. Keystone Publishing Co., 281 F. 83 (2d Cir. 1922); Monogram Models, Inc. v. Industro Motive Corp., 492 F.2d 1281 (6th Cir. 1974).
  49. Feist, 499 U.S. at 351-352.
  50. Id. at 353 (quoting Jeweler's Circular, 281 F. at 88-89).
  51. 17 U.S.C. 102(b).
  52. See Feist, 499 U.S. at 360 (“The 1976 revisions have proven largely successful in steering courts in the right direction. A good example is Miller v. Universal City Studios, Inc., 650 F.2d [1365, 1369-1370 (5th Cir. 1981)] . . . . Additionally, the Second Circuit, which almost 70 years ago issued the classic formulation of the sweat of the brow' doctrine was the Second Circuit's Jewelers Circular Publishing Co., has now fully repudiated the reasoning of that decision. See, e.g., Financial Information, Inc. v. Moody's Investors Service, Inc., 808 F.2d 204, 207 ([2d Cir.] 1986), cert. denied, 484 U.S. 820 . . . Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 ([2d Cir.] 1980).”).
  53. 1 Nimmer § 3.04 [B][1].
  54. Feist, 499 U.S. at 340-341, 363.
  55. Rural Tel. Serv. Co v. Feist Publications, Inc., 663 F. Supp. 214 (D. Kan. 1987), aff'd mem., 916 F.2d 718 (10th Cir. 1990), rev'd, 499 U.S. 340 (1991).
  56. 1 Nimmer § 3.04 [B][2][a].
  57. Feist, 499 U.S. at 344-345, 351.
  58. Id. at 359-360.
  59. Bridgeman 2, 36 F. Supp. 2d at 197 (“As the Supreme Court indicated in Feist, 'sweat of the brow' alone is not the 'creative spark' which is the sine qua non of originality.”) (citations omitted).
  60. If “originality requires independent creation plus a modicum of creativity,” Feist, 499 U.S. at 346, was just a bit catchier, there would be far less confusion.
  61. Bridgeman 2, 36 F.Supp.2d at 192.
  62. Id.
  63. Bridgeman 1, 25 F.Supp.2d at 426-428. Though this article is about U.S. law, it is worth noting that the U.K. does require originality for copyright protection under The Copyright, Designs and Patents Act, 1988, ch.1 §1(1) (UK) (“original literary, dramatic, musical or artistic works”). Further, cases have noted that “[s]kill, labor or judgment merely in the process of copying cannot confer originality . . . . There must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work.” Interlego AG v. Tyco Industries Inc., 25 R.I. 652, 57 A. 867, 1 A.C. 217 (P.C.1989), 3 All E.R. 949, 971-72 (1988).
  64. Bridgeman 2, 36 F.Supp 2d at 192.
  65. Id. at 195.
  66. Id. at 196-197.
  67. Id. at 196 (The requisite 'distinguishable variation,' moreover, is not supplied by a change of medium, as 'production of a work of art in a different medium cannot by itself constitute the originality required for copyright protection.'”) (quoting Past Pluto Productions v. Dana, 627 F.Supp. 1435, 1441 (S.D.N.Y.1986) (citing L. Batlin & Son, Inc., 536 F.2d at 491)).
  68. Id. N.54.
  69. See Robin J. Allan, AFTER BRIDGEMAN: COPYRIGHT, MUSEUMS, AND PUBLIC DOMAIN WORKS OF ART, 155 U. Pa. L. Rev. 961 (2007) (hereinafter Allan) for a thorough critique of the Bridgeman decisions.
  70. Bridgeman 2, 36 F.Supp.2d at 197 (citing 499 U.S. 340, 111 S.Ct. 1282, 113 L.Ed.2d 358).
  71. Feist, 499 U.S. at 359-360.
  72. For example, the same court preserved the compilation distinction later that year in Sparaco v. Lawler, Matusky, Skelly Engineers LLP, 60 F. Supp.2d 247, 251 (S.D.N.Y. 1999) (“In Feist, the Supreme Court clarified the originality requirement for compilations, emphasizing that 'originality, not ‘sweat of the brow,’ is the touchstone of copyright protection in directories and other fact-based works.' 499 U.S. at 361, 111 S.Ct. 1282.”).
  73. Mary Campbell Wojcik, THE ANTITHESIS OF ORIGINALITY: BRIDGEMAN, IMAGE LICENSORS, AND THE PUBLIC DOMAIN, 30 Hastings Comm. & Ent. L.J. 257, 263 (2008) (“. . . the reasoning of a single trial judge that other courts can either adopt or reject as they see fit.”).
  74. Id. at 263-264.
  75. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.2d 1258 (10th Cir. 2008) (“digital wire-frame computer models that depicted unadorned images of manufacturer's vehicles without any individualizing features were not sufficiently original to warrant copyright protection”).
  76. Id. at 1269 (quoting Bridgeman 2, 36 F.Supp.2d at 197) (emphasis in original).
  77. Bridgeman 2, 36 F.Supp.2d at 196 (“Elements of originality ... may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”) (quoting Rogers v. Koons, 960 F.2d 301, 307 (2d Cir.), cert. denied, 506 U.S. 934, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992), accord, Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 116 (2d Cir.1998)).
  78. Id. at 198 (“Plaintiff's problem here is that it seeks protection for the exception that proves the rule: photographs of existing two-dimensional articles (in this case works of art), each of which reproduces the article in the photographic medium as precisely as technology permits. Its transparencies stand in the same relation to the original works of art as a photocopy stands to a page of typescript, a doodle, or a Michelangelo drawing.”)
  79. Meshwerks, 528 F.2d at 1269-1270 (“Digital modeling can be, surely is being, and no doubt increasingly will be used to create copyrightable expressions. Yet, just as photographs can be, but are not per se, copyrightable, the same holds true for digital models. There's little question that digital models can be devised of Toyota cars with copyrightable features, whether by virtue of unique shading, lighting, angle, background scene, or other choices. The problem for Meshwerks in this particular case is simply that the uncontested facts reveal that it wasn't involved in any such process, and indeed contracted to provide completely unadorned digital replicas of Toyota vehicles in a two-dimensional space.”) (emphasis in original).
  80. Feist, 499 U.S. at 345.
  81. Trade-Mark Cases, 100 U.S. at 94.
  82. See Feist, 499 U.S. at 359-360.
  83. Bridgeman 2, 36 F. Supp. 2d at 196.
  84. See id. at 196-197.
  85. Id.
  86. This overview is primarily concerned with sound recordings made after 1972.
  87. 1 Nimmer § 2.10 [A] note 8 (“A sound recording is a derivative work in relation to the musical work recorded therein, just as a motion picture is a derivative work in relation to the novel or screenplay upon which it is based.”) (citing Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.2d 1193, 1197 (10th Cir. 2005); Pamfiloff v. Giant Records, Inc., 794 F. Supp. 933, 938 (N.D. Cal. 1992)).
  88. 17 U.S.C. § 101.
  89. 1 Nimmer § 2.10 [A][2] (“Likewise, the sound recording copyright does not attach to the underlying work per se, but only to the aurual version of such work as fixed on the material object.”) (emphasis in original).
  90. Id. (citing H.R. Rep. No. 92-487, 92d Cong., 1st Sess. 5 (1971); Sen Rep. no. 92-72, 92d Cong., 1st Sess. 4 (1971)).
  91. Id. at §2.10 [A][2][b] (citing Shaab v. Kleindienst, 345 F. Supp. 589 (D.D.C. 1972) (providing equipment and organizing the recording satisfies the requirements of authorship); contra R.C.A. Mfg. Co. v. Whiteman, 28 F. Supp. 787 (S.D.N.Y. 1939), rev'd on other grounds, 114 F.2d 86 (2d Cir. 1940) (organizing placement of musicians and advising volume of instruments to make recording clear insufficient to give rights in the performance above those of the performers)).
  92. Id. at §2.10 [A][2][b] (citing Innovative Concepts in Entertainment, Inc. v. Entertainment Enters. Ltd., 576 F. Supp. 457 (E.D.N.Y. 1983) (editing of sounds of a hockey game into a short segment held a copyrightable compilation)). But see Fantasy Inc. v. La Face Records, 43 U.S.P.Q.2d 1700, 1702 (N.D. Cal. 1997) for clarification that pure remixing, similar to compilations of facts, only protects from copying the copying new arrangement and not the underlying sounds, which maintain protection from their original recording.
  93. 1 Nimmer § 2.10 [A][2][b].
  94. Feist, 499 U.S. 340.
  95. Bridgeman 2, 36 F. Supp. 2d. 191.
  96. Meshwerks, 528 F.2d at 1258.