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Copyright Protection Not Available for Photographs Oriental Art Printing, Inc. v. Goldstar Printing Corp., 175 F. Supp. 2d 542 (S.D.N.Y.2001), aff’d in part, app. dismissed in part, 2002 U.S. App. LEXIS 5754 (2d Cir. 2002) Plaintiffs’ motion for preliminary injunction denied, and defendants’ motion to dismiss granted to extent it contended plaintiffs’ photographs were not copyrightable. Plaintiffs alleged infringement of their menu design for Chinese restaurants. Court found that photographs contained in plaintiffs’ work served purely utilitarian purpose and lacked requisite originality to be copyrightable. Court held there was no “creative spark” in photographs of common Chinese food dishes arranged on plates containing traditional Chinese “cloisonné porcelain” pattern with lotus flowers and leaves. Court noted that, even if photographs were copyrightable, they would be unprotectible under doctrine of scènes à faire. However, overall design in which photographs were contained did contain requisite originality to render it copyrightable work. But plaintiffs could not establish copying of design’s constituent original elements. On appeal, circuit court affirmed denial of preliminary injunction. Regardless of merits of plaintiffs’ other contentions, they cannot prevail because of failure to present any meaningful evidence of copying. Appellate court dismissed appeal of partial dismissal of copyright claim, since partial dismissal is not final order and no certification was sought. Source: http://www.abanet.org/intelprop/coursematerials/goldberg.pdf, page 27