Page:SHL Imaging v. Artisan House.pdf/9

 the Hambourg book), selecting and arranging the costume, draperies, and other “accessories,” as well as the lighting and shading. The combination of these choices was a “new, harmonious, and graceful pictire,” subject to protection. Burrow-Giles, 111 U.S. at 60, 4 S.Ct. at 282.

Nineteen years later, the Supreme Court renounced the distinction between the artistic and the ordinary in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 S.Ct. 298, 47 L.Ed. 460 (1903). In describing the circumstances when the requisite creativity may be satisfied, Justice Holmes wrote: "The [work] is always the persomal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone. That something he may copyright unless there is a restriction in the words of the act."

Bleistein, 198 U.S. at 250, 23 S.Ct. at 300.

Despite the broad sweep of this paragraph, Justice Holmes was not suggesting that a mere signature, even one as distinctive as John Hancock’s, is by itself copyrightable, nor that all pictorial works are per se protectible. Rather, he noted that courts may reject protection for works within “the narrowest and most obvious limits” and that works are protectible when there is a “very modest grade of art.” Bleistein, 188 U.S. at 250, 251, 23 S.Ct. at 300.

The Supreme Court’s most recent and authoritative pronouncement on originality in Feist augmented the Bleistein analysis. In Feist, the Court rejected the proposition that works are protectible so long as they were born from “sweat of the brow,” reaffirming that “[o]riginality is a constitutional requirement.” 499 U.S. at 346–47, 351–52, 358, 111 S.Ct. at 1288, 1290–91, 1294. The Court also cautioned that it is not difficult to satisfy the originality requirement; an author need only independently create the work and imbue it with “some minimum level of creativity,” a “creative spark.” Feist, 499 U.S. at 345, 358, 111 S.Ct. at 1290, 1294, The “spark need not provide a shock, but it must at least be perceptible to the touch.” Patry at 149.

The standards to be applied in determining whether the creative spark is present can be elusive. Although photography is a species of pictorial work, see 17 U.S.C. §§ 102(a)(5), 101 (definition of “pictorial, graphic and sculptural works”), it is not defined in the Copyright Act. Thus, unlike computer programs and audiovisual works, which are defined in the Act, courts are left without congressional guidance as to what attributes of photographic works are necessary to satisfy the originality requirement.

Judge Learned Hand observed that “no photograph, however simple, can be unaffected by the personal influence of the author, and no two will be absolutely alike.” Jewelers’ Circular Publ’g Co. v. Key-Stone Publ’g Co., 274 F. 932, 934 (S.D.N.Y.1921), aff’d, 281 F. 83 (2d Cir.1922). Although often quoted, this statement should not be read as a comment that all photographs are per se copyrightable. The Supreme Court in Feist made clear that the originality requirement is constitutional, and that no work is per se protectible.

There is no uniform test to determine the copyrightability of photographs. See, e.g., Burrow-Giles, 111 U.S. at 60, 4 S.Ct. at 282 (considering pose, selection and arrangement of costumes, draperies and other accessories, lighting and shading); Rogers v. Koons, 960 F.2d 301, 307 (2d Cit.1992) (emphasizing photographer’s “inventive efforts” in posing couple holding improbably numerous puppies between them, and photographic printing); Gross v. Seligman, 212 F. 930, 931 (2d Cir.1914) (considering pose, background, light, and shade); ''Eastern Am. Trio Prods., Inc. v. Tang Elec. Corp.'', 97 F.Supp.2d 395, 417–18