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lawsuitappealcopyright
defendantcopyrightcase law

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Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 2000 Copr.L.Dec. P 28,128, 55 U.S.P.Q.2d 1769, 2000 Daily Journal D.A.R. 9203

Facts

Ets-Hokin, a professional photographer, was hired by Skyy Spirits to photograph their vodka bottle. He retained all rights to the photos while licensing limited rights to Skyy. After delivering the photographs, Skyy claimed dissatisfaction and hired other photographers to take similar shots, allegedly using Ets-Hokin's work without permission. Ets-Hokin then filed a lawsuit against Skyy and others for copyright infringement, fraud, and negligent misrepresentation, asserting that they used his photographs in various advertisements without authorization.

Under the terms of a confirmation of engagement, signed by Dadalt on Skyy's behalf, Ets–Hokin retained all rights to the photos and licensed limited rights to Skyy.

Issue

Whether Ets-Hokin's photographs of the Skyy vodka bottle are entitled to copyright protection and whether they are derivative works.

The photographs at issue cannot be derivative works because the vodka bottle-the alleged underlying work-is not itself subject to copyright protection.

Rule

For a work to be considered a derivative work under copyright law, it must be based on a preexisting work that is itself copyrightable.

A derivative work must be based on a preexisting work that is copyrightable.

Analysis

The court determined that Ets-Hokin's photographs were not derivative works because the vodka bottle, which was claimed to be the underlying work, was not copyrightable. The court emphasized that the photographs contained sufficient originality to qualify for copyright protection, as they involved artistic choices made by Ets-Hokin, such as lighting and angle, which are recognized as protectable elements in copyright law.

In view of the low threshold for the creativity element, and given that the types of decisions Ets–Hokin made about lighting, shading, angle, background, and so forth have been recognized as sufficient to convey copyright protection, we have no difficulty in concluding that the defendants have not met their burden of showing the invalidity of Ets–Hokin's copyright, and that Ets–Hokin's product shots are sufficiently creative, and thus sufficiently original, to merit copyright protection.

Conclusion

The Court of Appeals reversed the district court's decision, holding that Ets-Hokin's photographs were entitled to copyright protection and remanded the case for further proceedings regarding the alleged infringement.

Having concluded that Ets–Hokin's photos are entitled to copyright protection, we leave to the district court the scope of Ets–Hokin's copyright in the photographs vis-a-vis the claimed infringement.

Who won?

Ets-Hokin prevailed in the appeal because the court found that his photographs were original works entitled to copyright protection, contrary to the district court's ruling.

The essence of copyrightability is originality of artistic, creative expression. Given the low threshold for originality under the Copyright Act, as well as the longstanding and consistent body of case law holding that photographs generally satisfy this minimal standard, we conclude that Ets–Hokin's product shots of the Skyy vodka bottle are original works of authorship entitled to copyright protection.

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