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Stylized photographs of a vodka bottle are sufficiently original to qualify for copyright protection and are not derivative works, the 9th U.S. Circuit Court of Appeals ruled Aug. 18 ( Joshua Ets-Hokin v. Skyy Spirits Inc., et al. , No. 98-17072, 9th Cir.). The panel reversed a ruling by U.S. Judge Susan Y. Illston of the Northern District of California entering summary judgment for Skyy Spirits Inc. in a copyright infringement action brought by photographer Joshua Ets-Hokin. At issue are three photographs of a Skyy vodka bottle taken by Ets-Hokin in late 1993 at the request of Skyy President Maurice Kanbar. Under the terms of a confirmation of engagement signed by Skyy employee Daniel Dadalt, Ets-Hokin retained all rights to the photos and licensed limited rights to Skyy. Ets-Hokin subsequently applied for registration of the photos; registration was issued in March 1995. Ets-Hokin eventually sued Skyy and three other defendants, alleging infringement of the copyrights on the photos. He alleged that Skyy used his work in various advertisements without his permission and that Skyy used photos taken by other photographers who mimicked his work by using it to produce virtually identical photos of the bottle. Skyy moved for summary judgment, contending that the photos were derivative works not entitled to protection. Judge Illston granted the motion. Ets-Hokin appealed. SUFFICIENTLY ORIGINAL Reversing, the 9th Circuit held that the photos are sufficiently original to qualify for copyright protection and that the lower court erred in analyzing the photos under the rubric of derivative works. “In view of the low threshold for the creativity element, and given that the types of decisions Ets-Hokin made about lighting, shading, angle, background, and so forth have been recognized as sufficient to convey copyright protection, we have no difficulty in concluding that the defendants have not met their burden of showing the invalidity of Ets-Hokin’s copyright, and that Ets-Hokin’s product shots are sufficiently creative, and thus sufficiently original, to merit copyright protection,” the court said. “Finally, although Ets-Hokin took photos that undoubtedly resemble many other product shots — straight on, centered, with back lighting so that the word ‘Skyy’ on the bottle is clear — the potential for such similarity does not strip his work of the modicum of originality necessary for copyrightability.” NO DERIVATIVE WORKS Further, the court said, the photos cannot be derivative works because the underlying work — the vodka bottle — is not copyrightable. “[T]he district court did not identify any artistic features of the bottle that are separable from its utilitarian ones,” the court said. “We also find none.” The panel remanded for a consideration of whether the copyrights were infringed. Ets-Hokin is represented by Charles D. Ossola and Jule L. Sigall of Arnold & Porter in Washington, D.C. Skyy is represented by James W. Kinnear and Karen D. Fineran of Makoff Kinnear Counsel in San Francisco. �; Copyright 2000 Mealey Publications, Inc.

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