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Ets-Hokin v Skyy Spirits, 225 F.3d 1068 (9th Cir. 2000) PLAINTIFF: Photographer Joshua Ets-Hokin claimed his commercial photographs, dubbed "product shots, " of the Skyy Spirits vodka bottle merit copyright protection. Ets-Hokin brought suit against Skyy and three other defendants for copyright infringement, fraud, and negligent misrepresentation. He alleged that the company used his work in various advertisements, including in Deneuve magazine and the San Francisco Examiner, and on the side of a bus, without his permission and in violation of the limited license. He also alleged that Skyy used photographs taken by the other photographers that mimicked his own photos; specifically, he claimed that these photographers improperly used his photographs to produce virtually identical photos of the vodka bottle. DEFENDANT : Skyy Spirits hired Ets-Hokin to photograph Skyy's vodka bottle. per contract, Ets-Hokin retained all rights to the photos and licensed limited rights to Skyy. Skyy claims that it found Ets-Hokin's photographs unsatisfactory and thus hired other photographers to photograph the bottle. The district court granted the defendants' motion on the ground that Ets-Hokin failed to establish the validity of his copyright. As a result, the court did not reach the question of infringement. The court also dismissed Ets-Hokin's claims of fraud and negligent misrepresentation. Ets-Hokin v. Skyy Spirits, Inc., No. C 96-3690 SI, 1998 WL 690856 (N.D. Cal. Sept. 28, 1998). On appeal, only the copyright claims were at issue. The district court held that the product shots were derivative works, reasoning that the photos were based on a preexisting work, namely, the Skyy vodka bottle. Having found that "the Skyy bottle is clearly a preexisting work," the court further held that the bottle's "trade dress (the blue bottle, the gold label, etc.) and copyrighted material (the label and all non-utilitarian features of the bottle)" rendered it a "protected and copyrighted work." The court of appeals disagreed, concluding that Ets-Hokin's photos were entitled to copyright protection In view of the low threshold for the creativity element. The court of appeals also stated it was not a derivative works case for two reasons: (1) a derivative work must be based on a preexisting work that is copyrightable; and (2) the Skyy vodka bottle is a utilitarian object that is not protected by copyright.