Page:United States Court of Appeals 06-4222.djvu/14

 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 primary case on which Meshwerks asks us to rely actually reinforces this conclusion. In Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000) (Skyy I), the Ninth Circuit was faced with a suit brought by a plaintiff photographer who alleged that the defendant had infringed on his commercial photographs of a Skyy-brand vodka bottle. The court held that the vodka bottle, as a "utilitarian object," a fact in the world, was not itself (at least usually) copyrightable. Id. at 1080 (citing 17 U.S.C. § 101). At the same time, the court recognized that plaintiff's photos reflected decisions regarding "lighting, shading, angle, background, and so forth," id. at 1078, and to the extent plaintiff's photographs reflected such original contributions the court held they could be copyrighted. In so holding, the Ninth Circuit reversed a district court’s dismissal of the case and remanded the matter for further proceedings, and Meshwerks argues this analysis controls the outcome of its case.

But Skyy I tells only half the story. The case soon returned to the court of appeals, and the court held that the defendant's photos, which differed in terms of angle, lighting, shadow, reflection, and background, did not infringe on the plaintiff's copyrights. Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 765 (9th Cir. 2003) (Skyy II). Why? The only constant between the plaintiff's photographs and