Originality is Elemental, but is it Art.

The protection of visual and artistic works is the stock and trade of the Register of Copyrights. These works do not have to aesthically pleasing or critically acclaimed, only original. The 10th Circuit’s recent decision in Meshwerks, Inc. v. Toyota has kept me perplexed through the weekend. In the end, the panel relies on caselaw about whether photos embody copyrightable originality, to decide that 3D digital models of a car body are not copyrightable, but are simply such perfect copies as to lack minimal originality. Trying to extend that logic seems to lead to a rule that superrealistic depicitions lack originality, but that imperfect representations have earmarks of originality that make those copyrightable.

The ruling is grounded on the premise that a photo includes the elements of shot “angle, lighting, shadow, reflection, and background,” which differs from photo to photo. A perfect 3D model created from actual measurements of an object has “stripped away all lighting, angle, perspective, and ‘other ingredients’ associated with an original expression.” That suggests that added content makes a work more copyrightable, but that does not actually answer the question of whether a “stripped away” image, or some other minimalist work, embodies originality or not.

Meshwerks was hired to create (?) wire model 3D drawings of the Totoya body, in digital form, for advertising use. The wire frame depictions can be manipulated, shadowed, colored, etc., and then inserted into ads, which offers a more flexible than a photoshoot, but yields comparable quality images. Using sensing devices moving all over the exterior of the car, a digital image was developed in 3D using modeling software. The finished image appears as a series of wires or frames forming the shape of the car body. Again, with a keystroke, the exterior color and other features can be added, which converts the wire frame image into a picture of the car. That simplicity combined with perfection was enough for the 10th Circuit to deem the 3D images as unoriginal, and uncopyrightable as visual works. The suit was driven by the fact that the images had been licensed for a single ad campaign, but those later were used again, and were given to a competing company to use for similar projects.

There are several threads running off this decision, both in copyright law and perceptions about originality. The case holds that the images are not copyrightable, but presumably, those had been registered as visual works. An alternative might have been to copyright the set of instructions that drove a PC to the result of generating those specific 3D images. The Copyright Office might have accepted the code as a copyrightable “set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result,” i.e., desired 3D images. On the aesthetic issues, consider this. The visual works of Frederic Remington or Norman Rockwell are loved because they so closely capture our view of ‘the original’ subject of the works. It is not that such depictions of a cowboy or a horse, or of events typical of Americana, are original or never before seen; it is just the opposite, that it, they are so exact in matching what we see with what we’ve seen that we view these artists’ works as unique, exact and truthful to perceived reality. If one were to pose live models in exactly the same way as seen in a Remington painting, then would a photo or drawing of that have enough ‘minimal originality’ to be copyrightable, or would it be so similar as to lack originality?