Photo Attorney

Mar 20, 2008

Court Finds Opposite - Photographs of Copyrighted Items Are NOT Derivative Works!

As a follow up to last Sunday's blog, the controversy continues. The good news - we now have another opinion by a court that has held that photographs of copyrighted items are NOT derivative works!

In Latimer v. Roaring Toyz, Inc., 2008 WL 697346 (M.D. Fl.), Todd Latimer took photographs of motorcycles with customized art work on them. When Latimer sued several parties for copyright infringement after his photos were used in various ways without his alleged permission, the defendants claimed, among other things, that Latimer did not have a copyright in the photos because they were unauthorized derivative works.

But unlike the Schrock court in Illinois, the Florida court in Latimer rejected the defense. It stated:
Under 17 U.S.C. Section 101, a derivative work must incorporate a substantial element of a preexisting work of authorship and recast, transform, or adapt those elements. See SHL Imaging, Inc. v. Artisan Homes, Inc., 117 F.Supp.2d 301, 305-306 (S.D.N.Y. 2000) (noting that "any derivative work must recast, transform or adopt the authorship contained in the preexisting work," the Court found that "the authorship of the photographic work is entirely different and separate from the authorship of the sculpture" depicted in the photograph). As explained in SHL Imaging, "a photograph of . . . [a] 'Puppy' sculpture in Manhattan's Rockefeller Center[ ] merely depicts that sculpture; it does not recast, transform, or adopt . . . [the] sculptural authorship. . . . [A]uthorship of the photographic work is entirely different and separate from the authorship of the sculpture." Id. at 306. It is undisputed that the artwork on the motorcycles is the original, creative expression of Ryan Hathaway, and as such, entitled to copyright protection. Defendants contend that since Hathaway did not grant a license to Latimer to make a derivative work by photographing Hathaway's artwork, the photographs at issue are unauthorized derivative works. The Copyright Act states that "[a] work consisting of editorial revisions, annotations, elaborations, or other modifications [to a preexisting work that], as a whole, represent an original work of authorship, is a 'derivative work.'" 17 U.S.C. Section 101. If, however, it is non-infringing and sufficiently original, such a work qualifies for a separate copyright. The Court rejects Defendants' argument that Latimer can have no copyrightable interest in his photographs. Here, Latimer has not altered Hathaway's artwork, recast it, or otherwise transformed it during the photographic process. The ZX-14s [motorcycles] are the subject of the photographs. Hathaway's artwork has not been transformed in the slightest-it is presented in a different medium, but it has not been changed in the process such that it meets the criteria for a derivative work under copyright law. While Latimer has copyrighted photographs of the ZX-14s, he does not seek to monopolize the subject matter or idea of the photographs but merely to protect the actual reproduction of his expression of the idea, to wit, the photographs themselves. As in SHL Imaging, Latimer has not "recast, transform[ed], or adopt[ed]" Hathaway's artwork. Defendants' argument that Latimer's photographs are derivative works lacks merit.
Emphasis added.

The rest of the order is worth reading because it discusses the application of the particular facts of the case to copyright law that led the court to dismiss defendants' claims that: Latimer's photographs were joint works; Latimer granted an implied license for the photographs; the uses by defendants were fair use; and Latimer's photographs were not copyrightable.

Congrats to Todd Latimer for protecting his work.

Take my advice; get professional help.

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