Page:United States Court of Appeals 06-4222.djvu/24

 nothing more than "mechanical reproduction of the physical features or outlines of some object . . . and involves no originality of thought or any novelty in the intellectual operation connected with its visible reproduction in [the] shape of a picture." Burrow-Giles, 111 U.S. at 59. Clearly, this is not so.

Digital modelling can be, surely is being, and no doubt increasingly will be used to create copyrightable expressions. Yet, just as photographs can be, but are not per se, copyrightable, the same holds true for digital models. There's little question that digital models can be devised of Toyota cars with copyrightable features, whether by virtue of unique shading, lighting, angle, background scene, or other choices. The problem for Meshwerks in this particular case is simply that the uncontested facts reveal that it wasn’t involved in any such process, and indeed contracted to provide completely unadorned digital replicas of Toyota vehicles in a two-dimensional space. For this reason, we do not envision any "chilling effect" on creative expression based on our holding today, and instead see it as applying to digital modeling the same legal principles that have come, in the fullness of time and with an enlightened eye, to apply to photographs and other media. (continued...)