Plaintiff Meshworks was hired to make computerized, animated 3D models of several Toyota cars for an ad campaign. Faithfulness to what a ‘real’ car would look like was a ‘point’ of the model (which was used on web swites so that customers could manipulate the images (e.g. change color)). A dispute broke out, plaintiff sued for infringement, defendants claimed the models weren’t protectible, District Court held that models were insufficiently original for copyright protection, 10th circuit affirmed.
Prof Patry criticism of District Court decision here. I certainly hope he’ll weigh in on the circuit court decision.
I’ve read the decision once. My initial take is this:
The court is conflating fidelity with originality. In my view, if there was creativity and originality in achieving the fidelity, then to the extent those creative and original efforts are expressed, that expression should be copyrightable. The expression is embodied in the final work.
Read the opinion, think it over, please comment.
UPDATE: Prof Patry weighs in. I think that what I said above re fidelity was influenced heavily (ok, stolen) from what Bill said two years ago about this case. While he is more sympathetic to the holding, I do agree with his final paragraph:
I am still bothered by the premise that efforts to realistically depict an actual object are unoriginal. Superrealist oil paintings are an obvious example. I have a few posters of them, and if you don’t look closely you think it was a photograph. Photographs are of course protectible, usually, due to the lighting, shading, angle and other choices. But in Meshwerks those choices were made by G&W, and this is what seemed to persuade the court of appeals Meshwerk’s contributions were unoriginal.