Tenth Circuit: Digital model of car not separately copyrightable because no originalityJune 19, 2008

In a decision this week, the Tenth Circuit affirmed a district court's grant of summary judgment in favor of the defendants in a copyright case, finding a digital work lacking sufficient originality to warrant copyright protection. The works at issue were three-dimensional computer models of cars for use in advertisements. The court agreed that the plaintiff "made many judgments that required both skill and technical know-how. Those judgments may have even involved 'creativity,' as that word is commonly used." However, the end result was simply a copy of the car in a different medium. In fact, the plaintiff's intent was to reproduce the underlying work with absolute fidelity. Thus, the work lacked any original addition to the underlying work and was not eligible for copyright protection.More on Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc. after the jump.Plaintiff Meshwerks was hired to make digital models of several Toyota cars for an ad campaign. Meshwerks used a grid of tape and modeling software to recreate the vehicle. However, the digitized image of the vehicle still required manual modeling of the vehicle because some areas, such as wheels, headlights, and the Toyota emblem, could not be accurately measured using current technology. The measurement and manual modeling required between 80 to 100 hours of work per vehicle. Below is an example of Meshwerks' digital modeling work:After finishing its digital models, Meshwerks sent them to defendant, Grace & Wild, who manipulated the models to add color, texture, lighting, and animation for use in Toyota's advertisements. Below is an example of Grace & Wild's work product:Meshwerks sued for infringement after it discovered Toyota (and other defendants) reused and redistributed the models created by Meshwerks in a host of other media. Defendants responded by claiming the models were not protectible and moving for summary judgment. The district court held that models were insufficiently original for copyright protection. The district court held the digital models were "merely copies" and that Meshwerks' "intent was to replicate, as exactly as possible, the image of certain Toyota vehicles."The Tenth Circuit affirmed. The court drew a parallel between the digital models and a previous revolution in technology: photography. The court found that just as photographs are not per se copyrightable (but have potentially copyrightable elements in their depiction of the subject, for example, "pose, positioning, background, lighting, shading, and the like"), the digital models are only copyrightable to the extent of their original depiction of the subject. The court concluded that Meshwerks' models were not so much independent creations but "very good" copies of Toyota's vehicles.The court relied on its assessment of the particular models and the parties' purpose in creating them. The court noted that Meshwerk's digital models depicted Toyota's vehicles without any individualizing features:

It seems to us that exactly the same holds true with the digital medium now before us: the facts in this case unambiguously show that Meshwerks did not make any decisions regarding lighting, shading, the background in front of which a vehicle would be posed, the angle at which to pose it, or the like – in short, its models reflect none of the decisions that can make depictions of things or facts in the world, whether Oscar Wilde or a Toyota Camry, new expressions subject to copyright protection.

The court was also influenced by Meshwerks' intent to reproduce Toyota's vehicles with absolute fidelity. The court said that authorial intent can shed light on whether a particular work qualifies as an independent creation or only a copy. Meshwerks set out to copy exactly Toyota's vehicles and, by design, all that was left in Meshwerks' digital models were the designs of Toyota's vehicles. Thus, the "spark of originality" necessary for copyright protection was missing.Interestingly, the court was not persuaded by the Meshwerks' reliance on the "Hand of God" case, Alva Studios, Inc. v. Winninger, to justify copyright protection. In that case, a sculptor reproduced a smaller-scale version of Rodin's "Hand of God." The court held that was copyrightable because it required great skill to accurately reproduce the work. The court opined that Alva was undermined by the Supreme Court's decision in Feist and may no longer be good law.Finally, the court emphasized digital imaging was a new and evolving technology that may be used to create copyrightable expressions. Digital models with unique shading, lighting, angle, background scene, or other choices may be copyrightable. Optimistically, the court did not envision any "chilling effect" on creative expression in the digital modeling arena. According to the court, its decision only applied the same legal principles as have come to apply to photographs and other media.To read the full decision in Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., click here.

Bill Patry discusses the case on his blog here, and comments that if he "was still writing casebooks for law school classes, Meshwerks would be a must for inclusion in the next edition."