Page:Daniel Schrock v. Learning Curve International, Inc. 7th Cir. 08-1296.djvu/16

 predecessors.” Bucklew, 329 F.3d at 929. We emphasized in Bucklew that this standard does not require a  “high degree of [incremental] originality.” Id.

We think Gracen must be read in light of L. Batlin, on which it relied, and Bucklew,  which followed it. And doing so reveals the following general principles: (1) the originality requirement for derivative works is not more demanding than the originality requirement for other works; and (2) the key inquiry is whether there is sufficient nontrivial expressive  variation in the derivative work to make it distinguishable from the underlying work in some meaningful way. This focus on the presence of nontrivial “distinguishable  variation” adequately captures the concerns articulated in Gracen without unduly narrowing the copyrightability  of derivative works. It is worth repeating that the copyright in a derivative work is thin, extending only to the incremental original expression contributed by the author of the derivative work. See.

As applied to photographs, we have already explained that the original expression in a photograph generally subsists in its rendition of the subject matter. If the photographer’s rendition of a copyrighted work varies enough from the underlying work to enable the photograph to  be  distinguished  from  the underlying work (aside from the obvious shift  from three dimensions to two, see supra n.3), then the photograph contains sufficient incremental originality to qualify for copyright. Schrock’s photos of the “Thomas & Friends” toys are highly accurate product photos but contain