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This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From Ets-Hokin v Skyy Spirits, 225 F.3d 1068 (9th Cir. 2000)

Turning next to the bottle's label, which the district court also cited in part in categorizing Ets-Hokin's photos as derivative works, we note that "[a] claim to c opyright cannot be registered in a print or label consisting solely of trademark subject matter and lacking copyrightable matter. " 37 C.F.R. S 202.10(b). Although a label's "graphical illustrations" are normally copyrightable, "textual matter" is not-at least not unless the text "aid[s] or augment[s]" an accompanying graphical illustration. 1 NIMMER S 2.08[G][2], at 2-136.14 The label on Skyy's vodka bottle consists only of text and does not include any pictorial illustrations.

We need not, however, decide whether the label is copyrightable because Ets-Hokin's product shots are based on the bottle as a whole, not on the label. The whole point of the shots was to capture the bottle in its entirety. The defendants have cited no case holding that a bottle of this nature may be copyrightable, and we are aware of none. Indeed, Skyy's position that photographs of everyday, functional, noncopyrightable objects are subject to analysis as derivative works would deprive both amateur and commercial photographers of their legitimate expectations of copyright protection. Because EtsHokin's product shots are shots of the bottle as a whole--a useful article not subject to copyright protection--and not shots merely, or even mainly, of its label, we hold that the bottle does not qualify as a "preexisting work " within the meaning of the Copyright Act. As such, the photos Ets-Hokin took of the bottle cannot be derivative works. The district court erred in so concluding.

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