Tabberone is pronounced tab ber won
not tay ber own
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Tabberone is pronounced tab ber won |
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| This information is taken directly from the court opinion. It is not taken out of context nor is it altered. |
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From Jorie Gracen v. The Bradford Exchange, 698 F.2d 300 (7th Cir. 1983)
We are speaking, however, only of the requirement of originality in derivative works. If a painter paints from life, no court is going to hold that his painting is not copyrightable because it is an exact photographic likeness. If that were the rule photographs could not be copyrighted -- the photographs of Judy Garland in "The Wizard of Oz," for example -- but of course they can be, 1 Nimmer on Copyright § 2.08[E] (1982). The requirement of originality is significant chiefly in connection with derivative works, where if interpreted too liberally it would paradoxically inhibit rather than promote the creation of such works by giving the first creator a considerable power to interfere with the creation of subsequent derivative works from the same underlying work. Justice Holmes' famous opinion in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, (1903), heavily relied on by Miss Gracen, is thus not in point. The issue was whether lithographs of a circus were copyrightable under a statue (no longer in force) that confined copyright to works "connected with the fine arts." Holmes' opinion is a warning against using aesthetic criteria to answer the question. If Miss Gracen had painted Judy Garland from life, her painting would be copyrightable even if we thought it kitsch; but a derivative work must be substantially different from the underlying work to be copyrightable. This is the test of L. Batlin & Son, Inc. v. Snyder, supra, 536 F.2d at 491, a decision of the Second Circuit -- the nation's premier copyright court -- sitting en banc. Earlier Second Circuit cases discussed in Batlin that suggest a more liberal test must be considered superseded. We agree with the district court that under the test of Batlin Miss Gracen's painting, whatever its artistic merit, is not an original derivative work within the meaning of the Copyright Act. Admittedly this is a harder case than Durham Industries, Inc. v. Tomy Corp., supra, heavily relied on by the defendants. The underlying works in that case were Mickey Mouse and other Walt Disney cartoon characters, and the derivative works were plastic reproductions of them. Since the cartoon characters are extremely simple drawings, the reproductions were exact, differing only in the medium. The plastic Mickey and its cartoon original look more alike than Judy Garland's Dorothy and Miss Gracen's painting. But we do not think the difference is enough to allow her to copyright her painting even if, as we very much doubt, she was authorized by Bradford to do so. |
