Page:Daniel Schrock v. Learning Curve International, Inc. 7th Cir. 08-1296.djvu/9

 derivative works, but these, too  (and again, as the judge properly  acknowledged),  did  not  directly  address the question. Ty, Inc. v. Publications International Ltd., 292 F.3d 512, 519 (7th Cir. 2002), involved unauthorized “Beanie Babies” collector’s guides that  incorporated photographs of the popular beanbag plush toys into the text. We said there that “photographs of Beanie Babies are derivative works from the copyrighted Beanie Babies themselves,” but this statement was based entirely on the parties’ concession that the photographs were derivative works. ''Id. Saturday Evening Post Co. v. Rumbleseat Press, Inc.'', 816 F.2d 1191 (7th Cir. 1987), made a passing remark suggesting that photographs of Norman Rockwell illustrations were derivative works, but that was not an issue in the case, id. at 1201; the issue instead was whether certain terms in a licensing agreement (specifically, no-contest and arbitration clauses) were enforceable, id. at 1193.

We need not resolve the issue definitively here. The classification of Schrock’s photos as derivative works does not affect the applicable legal standard for determining copyrightability, although as we have noted, it does determine the scope of copyright protection. Accordingly, we will assume without deciding that  each of Schrock’s photos qualifies as a derivative work within the meaning of the Copyright Act.

B. Originality and Derivative Works
As a constitutional and statutory matter, “[t]he sine qua non of copyright is originality.” Feist Publ’ns, Inc., 499