Ets-Hokin

Opinion by Judge McKEOWN; Dissent by Judge D.W. NELSON.

This case requires us to apply copyright principles to stylized photographs of a vodka bottle. Specifically, we must decide whether professional photographer Joshua Ets-Hokin’s commercial photographs, dubbed “product shots,” of the Skyy Spirits vodka bottle merit copyright protection. Given the Copyright Act’s low threshold for originality generally and the minimal amount of originality required to qualify a photograph in particular, we conclude that Ets-Hokin’s photographs are entitled to copyright protection.

We also conclude that the district court erred in analyzing this case through the lens of derivative copyright. The photographs at issue cannot be derivative works because the vodka bottle-the alleged underlying work-is not itself subject to’ copyright protection. Accordingly, we reverse the grant of summary judgment for Skyy Spirits and remand for consideration of whether infringement has occurred.

BACKGROUND

I. THE STORY

The centerpiece of this case and the subject of the photographs is a vodka bottle, shaped like a wine bottle, with boldly colored blue glass, a “pilfer-proof ’ cap, and a rectangular label. The…

dissenting:

The majority opinion errs in reversing the district court’s summary judgment order because there is no way that Ets-Hokin can prove infringement given the low standard of originality for photographs. I agree with the majority opinion that under this standard that Ets-HoMn’s photographs are original. By the same token, however, so are the other allegedly infringing photographs of Skyy’s vodka bottle. 1 These subsequent photographs *1083 are based on slightly different angles, different shadows, and different highlights of the bottle’s gold label. Thus, even if the district court had applied the proper standard of originality, Ets-Hokin’s lawsuit would not have survived summary judgment because the subsequent photographs also possess originality. 2 Furthermore, as a matter of law, legal defenses such as scenes á faire and the merger doctrine prevent Ets-Hokin from prevailing on his copyright infringement claims.

I also agree with the majority opinion that the district court erred by basing its summary judgment order solely on a derivative works analysis. The majority opinion, however, fails to acknowledge that it is a much closer question (and a question that lacks…