minimally sufficient variation in angle, perspective, lighting, and dimension to be distinguishable from the underlying works; they are not “slavish copies.” Accordingly, the photos qualify for the limited derivative-work copyright provided by § 103(b).[1] See
- ↑ Learning Curve and HIT argue in the alternative that Schrock’s photos fall within the scènes à faire or merger doctrines and therefore are not copyrightable. The doctrine of scènes à faire (French for “scenes for action”) prohibits copyright protection in elements or themes that are “so rudimentary, commonplace, standard, or unavoidable that they do not serve to distinguish one work within a class of works from another.” Bucklew, 329 F.3d at 929; see also Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 672 F.2d 607, 616 (7th Cir. 1982) (mazes and tunnels in Atari’s PAC-MAN video game are common to this class of video games and are therefore scènes à faire and not copyrightable). The defendants’ argument seems to be that because images of its “Thomas & Friends” toys will be common to all product photos of the toys, no product photos can be copyrighted. If this were true, then no derivative work would be copyrightable; by definition, derivative works incorporate the underlying work in some way. In any event, as we explained in Bucklew,
[e]very expressive work can be decomposed into elements not themselves copyrightable—the cars in a car chase, the kiss in a love scene, the dive bombers in a movie about Pearl Harbor, or for that matter the letters of the alphabet in any written work. The presence of such [common] elements obviously does not forfeit copyright protection of the work as a whole, but infringement cannot be found on the basis of such elements alone; it is the combination of elements, or particular novel twists given to them, that supply the minimal originality required for copyright protection.”329 F.3d at 929. Schrock’s contribution of the photographic elements of lighting, angle, perspective, and the like supply the “minimal originality” required for copyright in the photos.
Learning Curve and HIT also invoke the doctrine of merger, which is premised on the principle that ideas cannot be copyrighted. See JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 917 (7th Cir. 2007) (noting the “fundamental tenet of copyright law that the idea is not protected, but the original expression of the idea is”). Copyright cannot attach when the idea and the expression “merge.” The defendants argue that because Schrock’s photos are “straightforward” product photos, he has done nothing more than “express” the “idea” of “basic product photography.” The defendants do not explain how a product photo—even one that is “straightforward” or “basic”—qualifies as an uncopyrightable “idea.” In any event, this argument essentially advocates a categorical rule that all accurate product photos are uncopyrightable. We are unwilling to establish such a rule.
